Coilplus-Alabama, Inc. v. Vann

53 So. 3d 898, 2010 Ala. LEXIS 63, 2010 WL 1525060
CourtSupreme Court of Alabama
DecidedApril 16, 2010
Docket1080618
StatusPublished
Cited by13 cases

This text of 53 So. 3d 898 (Coilplus-Alabama, Inc. v. Vann) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coilplus-Alabama, Inc. v. Vann, 53 So. 3d 898, 2010 Ala. LEXIS 63, 2010 WL 1525060 (Ala. 2010).

Opinion

BOLIN, Justice.

Coilplus-Alabama, Inc., appeals from a summary judgment in favor of Johnnie F. Vann and Sirote & Permutt, P.C., in this legal-malpractice action. We affirm.

Facts and Procedural History

In 1998, Coilplus retained Johnnie F. Vann and the law firm at which he then worked, Sirote & Permutt, to advise it about the issuance of $8,000,000 in bonds (hereinafter referred to as the “1999 bonds”) for the expansion of its Athens steel-manufacturing plant. Vann recommended that the 1999 bonds be issued through the Industrial Development Board of Athens, and he advised Coilplus that the 1999 bonds would qualify as tax-exempt bonds under the rules of the Internal Revenue Service (“the IRS”). At the time the issuance of the 1999 bonds was being discussed, Vann was aware that a tax-exempt-bond issue in the face amount of $5,000,000 had been issued in 1984 for a Coilplus project (hereinafter referred to as the “1984 bonds”) and that the 1984 bonds had not been retired. According to the parties, for small-issue bonds to qualify as tax exempt, the total capital expenditures for the three years before the bonds were issued and the three years after the bonds were issued, combined with the amount of any outstanding bonds and including the bonds to be issued, may not exceed $10,000,000. See 26 U.S.C. § 144. On February 16,1999, an attorney with another law firm sent Vann a letter stating that Coilplus had outstanding bonds that had not been retired — i.e., the 1984 bonds. On February 19, 1999, an employee with The Bank of New York, the trustee for the 1984 bonds, sent Vann documents regarding the 1984 bonds. On March 25, 1999, the 1999 bonds were sold to purchasers.

Later in 1999, the IRS questioned whether Coilplus’s prior capital expenditures as represented in the documents and schedules that accompanied the 1999 bonds, when added to the face amount of the 1999 bonds, exceeded the small-issue amount allowed under 26 U.S.C. § 144. The investigation apparently concerned only whether certain capital expenditures would be counted toward the $10,000,000 cap and was not focused on the 1984 bonds or the effect of the 1984 bonds on the $10,000,000 cap allowed by 26 U.S.C. § 144. Coilplus received a favorable private-letter ruling from the IRS. Vann [900]*900sent Coilplus a letter on September 20, 2000, informing it of the favorable ruling, along with a copy of the private-letter ruling.

Apparently the IRS continued investigating the 1999 bonds and shifted its focus to whether the issuance of the 1999 bonds in light of the outstanding 1984 bonds violated the $10,000,000 cap, irrespective of the capital expenditures. On July 16, 2001, an IRS employee sent the following e-mail to the accounting supervisor at Coil-plus, which stated, in pertinent part:

“I have been doing some research on the $10 million Cap rule. It seems that the $5,000,000 bond that was outstanding on the date of issue (2/25/1999) of the $8,000,000 bond has to be included in computation of the $10 million cap. (Internal Revenue Code Section 144(a)(2)). IF this is the case, the total at the time of issue of the second bond would be $13,000,000 and therefore, over the cap. We may be wasting our time trying to come up with other capital expenditures.”

(Capitalization in original.)

On July 19, 2001, the president of Coil-plus forwarded and copied the IRS e-mail to several persons and added the following:

“This is an e-mail from the IRS Auditor. If her comments are true, then Coilplus-AL should have never pursued a non-taxable bond. If this is true, then I would be compelled to say that it appears that there was a complete failure of professional services in the matter of advice regarding the establishment of our bond issue.”

On August 9, 2001, the president of Coil-plus, Larry Doss, sent an e-mail regarding the 1984 bonds and the 1999 bonds to its parent company, Mitsubishi International Corporation:

“CPA [Coilplus-AL] Tax-exempt bond—
“Thursday 8/2/01—
“Meetings all day with
“Jim Schiefelbein-Bond Trustee, Bank of New York
“Heyward Hosch Ill-Attorney — Wal-ston Wells Anderson & Bains, Birmingham, AL
“Alma Dripps-IRS-Tax-exempt bond agent
“Hazel Dinsmore-IRS, Tax-exempt bond group manager
“Johnny [sic] Vann-CPA tax exempt bond council [sic] of the firm of Lanier, Ford, Shaver and Payne in Huntsville, previously with Sirote & Permutt at the time of the bond inception
“Sean Kelley-Vice Pres. AmSouth Bank
“Susan Journey-CPA.
“I called this meeting to settle this issue and determine next actions. Results of meeting:
“1. CPA tax exempt bond was defunct from the beginning because of the fact that the original 1984 $5,000,000 bond issue was still in effect when the 1999 $8,000,000 bond issue was instituted. All previous issues regarding CPA capital expenditure controls to avoid exceeding the cap are now immaterial. Cap was exceeded from the bond’s inception date in Feb. 1999. This finding is final as agreed to by all parties.
“2. Johnny [sic] Vann has been terminated as council [sic] of any kind for CPA. Mr. Vann should be prepared to call on his carrier of errors and omissions insurance. Outstanding bill to CPA from Mr. Vann regarding this matter will not be paid.
“3. Restitution and recovery costs associated with the revocation of the tax-exempt bond will be charged back to the parties who provided professional services and bond council [sic] to CPA.
[901]*901“4. Heyward Hosch III has been retained by CPA as bond council [sic] for the new taxable bond. Hosch III is currently putting together the total amount of charges that CPA will request as restitution. Litigation will be avoided, but if belligerence is encountered regarding restitution, this option will need to be seriously explored.
“5. Morgan Keegan has been selected as underwriter for the new taxable bond.
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“Friday 8/3/01, Birmingham AL
“Met with Heyward Hosch III and Frank Kohn in Birmingham law firm office for almost 4 hours working on strategy for restitution and commencement of taxable bond.”

On September 20, 2001, the 1999 bonds were retired and refunded, effective as of the date of the issuance. On March 25, 2002, the president of Coilplus sent Sirote & Permutt a letter, stating:

“In 1999, Coilplus-Alabama, Inc., a subsidiary of Mitsubishi International Corporation, retained the services of Si-rote & Permutt as bond council [sic] for a bond in the amount of $8,000,000. Your firm’s councilor [sic] for this bond was Johnny [sic] Vann. Your firm and Mr. Vann were recommended to us by our contacts at AmSouth Bank.

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Bluebook (online)
53 So. 3d 898, 2010 Ala. LEXIS 63, 2010 WL 1525060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coilplus-alabama-inc-v-vann-ala-2010.