In the Matter of Palmer Trading, Inc. Appeal of Irving Gordon, Trustee

695 F.2d 1012
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 17, 1983
Docket81-2745
StatusPublished
Cited by8 cases

This text of 695 F.2d 1012 (In the Matter of Palmer Trading, Inc. Appeal of Irving Gordon, Trustee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of Palmer Trading, Inc. Appeal of Irving Gordon, Trustee, 695 F.2d 1012 (7th Cir. 1983).

Opinions

HARLINGTON WOOD, Jr., Circuit Judge.

This case is an appeal from a district court ruling which reversed an order by the bankruptcy court allowing the Trustee of Palmer Trading Company (Palmer Trading) to retain a tax refund check from the United States Treasury in the amount of $40,-073.08 and payable to GNB, Inc. (GNB), a corporate affiliate and predecessor of Palmer Trading. The central issue on appeal is whether the district court, 15 B.R. 276 (D.C. 111.1981), properly concluded that the affiliated corporations’ behavior did not produce wrong and harm to creditors sufficient to allow the bankruptcy Trustee to marshall GNB’s tax refund to satisfy the claims of Palmer Trading’s creditors.

I.

Both GNB and its successor and affiliate Palmer Trading were Illinois corporations engaged in the business of selling commodities options, chiefly those listed on the London Commodity Exchange. Both corporations were controlled by Arthur Palmer, who was President of both corporations and owned the entire stock of Palmer Trading and two-thirds of the stock of GNB. The bankruptcy court found that new regulations promulgated by the Commodities Futures Trading Commission (CFTC) prompted Arthur Palmer to cause GNB to cease active operations in 1976 and also to incorporate Palmer Trading to continue the business activities of GNB. The reason for this transfer, as the bankruptcy court found, was that GNB had been conducting its business affairs in a negligent fashion and that its books and records were in such disarray that prohibitive time and effort would be entailed in reconstructing them sufficiently to meet new CFTC licensure criteria. Palmer Trading, starting with a clean [1013]*1013accounting slate, would be thus able to carry on GNB’s business with federal approval.

Pursuant to this plan, on October 12, 1976, GNB transferred its assets, including its customer lists and open commodity positions, to Palmer Trading. GNB thereafter ceased its active business of commodity trading, and its only activities after the transfer were the preparation of its books and records for an Internal Revenue Service audit in 1978, payment of a salary to Arthur Palmer, and payment of payroll tax for GNB employees. Although GNB’s accountant testified that, as of the trial date, it was impossible to determine whether GNB was a creditor or a debtor of Palmer Trading, other evidence indicated that Palmer Trading possessed a positive net worth and was able to meet its financial obligations until the events giving rise to its bankruptcy.

As the Trustee conceded at trial, the immediate cause of the bankruptcy which gives rise to this matter was not any conduct of GNB or Palmer Trading in connection with the 1976 transfer of business or subsequent intercorporate behavior, but rather an employee embezzlement which caused the business of Palmer Trading to decline drastically. Palmer Trading thereafter filed its petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 1101-74; in early 1978, the Chapter XI proceedings terminated and the case was then converted into a liquidation bankruptcy proceeding under Chapter VII of the Bankruptcy Act, 11 U.S.C. §§ 701-77. During the course of the proceedings, the Trustee of Palmer Trading, believing GNB and Palmer Trading to be indistinguishable entities, collected a $40,073.08 tax refund check payable to GNB which resulted from losses sustained by GNB and its consequent overpayment of taxes prior to its cessation of active operations and the transfer of its assets to Palmer Trading.

In response, GNB filed an adversary complaint for conversion against the Trustee, seeking a return of the tax refund check to GNB on the basis that GNB was a separate corporation entitled to retain funds nominally payable to it. The Trustee argued in defense that GNB was merely an “alter ego” of Arthur Palmer and Palmer Trading, a “shell” whose assets were subject to the trustee’s control, and that GNB should be estopped from denying that it transferred the tax refund to Palmer Trading in view of its transfer of its entire business operations to the successor corporation. After a trial, the bankruptcy court ruled in favor of the trustee on both affirmative defenses and denied GNB’s claim to return of the funds.

The bankruptcy court articulated three grounds for piercing the corporate veil separating GNB and Palmer Trading in order to permit the trustee of the latter to obtain GNB’s tax refund: 1) evidence that the two companies were operated as a common vehicle to do the bidding of Arthur Palmer; 2) evidence that the plaintiff engaged in conduct which was calculated to conceal from the public (including creditors, customers and regulatory authorities) the material facts relating to its solvency and manner of doing business; and 3) an inference that creditors of Palmer Trading were harmed by their reliance upon the merged identities of GNB and Palmer Trading.

As to the first two grounds, the bankruptcy court pointed to a variety of evidence which demonstrated the corporations’ own disregard for corporate formalities and their failure to properly account for the transfer of assets and liabilities from GNB to Palmer Trading. Inter alia, the bankruptcy court noted the use of GNB stationery for sales confirmations of orders placed with Palmer Trading; the continued use of a GNB bank wire transfer account to assist in the exercise of options by Palmer Trading customers; the use by both corporations of the same Telex machine to receive and transfer both funds and orders; the occupation of the same suite of offices, with GNB listed on the door even after supposedly ceasing operations; the failure to notify GNB creditors of the transfer of GNB assets to Palmer Trading and the continued billing of GNB for goods and services con[1014]*1014sumed by Palmer Trading (e.g., GNB continued as nominal lessee of the office suites; telephone, duplicating and equipment bills were directed to GNB) which led to a belief by creditors that the two entities were identical; the indiscriminate payment of ordinary business debts by either corporation interchangeably; undocumented inter-company transfers made in bulk, with only belated attempts to allocate expenses; a failure to rectify the accounts between the two corporations sufficiently to allow them to operate independently; the failure to account for assets of some GNB subsidiaries ostensibly transferred to Palmer Trading; assumption by Palmer Trading of the defense of state and federal actions against GNB, and an attempt by Palmer Trading to stay these actions and then to extend to itself the protection of this stay; the instruction given to Palmer Trading employees that they were to identify themselves as GNB employees when placing customer orders with brokerage houses so that GNB accounts could serve as conduits for the transfers; the payment of a large salary by GNB to Arthur Palmer after GNB had supposedly ceased operations; and finally, exact identity of employees, accounting firms, law firms and chief executive officers and major shareholders.

The bankruptcy court reasoned that this evidence displayed an apparent lack of regard for the requirements and responsibilities imposed upon a corporate entity, and that the purpose of GNB’s transfer of its ongoing business was to obscure its prior improper activities and practices which, if discovered, would have caused the termination of GNB’s business.

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