Michael Tricarichi v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2018
• Docket: 16-73418
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL A. TRICARICHI, Transferee, No. 16-73418

Petitioner-Appellant, Tax Ct. No. 23630-12

v. MEMORANDUM* COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Argued and Submitted February 7, 2018 Pasadena, California

Before: W. FLETCHER, BEA,** and OWENS, Circuit Judges.

Taxpayer Michael A. Tricarichi appeals from the tax court’s decision on his

petition challenging a notice of transferee liability regarding West Side Cellular,

Inc.’s (“West Side”) unpaid taxes. Specifically, Tricarichi challenges the tax

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Judge Bea was drawn to replace Judge Reinhardt on the panel following his death. Ninth Circuit General Order 3.2h. Judge Bea has read the briefs, reviewed the record, and listened to oral argument. court’s conclusion that he is liable for West Side’s unpaid taxes under 26 U.S.C.

§ 6901 and the Ohio Uniform Fraudulent Transfer Act (“UFTA”).1 We have

jurisdiction under 26 U.S.C. § 7482. We review the tax court’s conclusions of law

de novo and its factual findings for clear error. Hongsermeier v. Comm’r, 621

F.3d 890, 899 (9th Cir. 2010). As the parties are familiar with the facts, we do not

recount them here. We affirm.

Contrary to Tricarichi’s contentions, the tax court did not clearly err in its

factual findings regarding the structure and timing of the stock sale. See Shea

Homes, Inc. & Subsidiaries v. Comm’r, 834 F.3d 1061, 1067 (9th Cir. 2016)

(stating that when reviewing the tax court’s underlying factual determinations for

clear error, this court may reverse only if it finds that “the [t]ax [c]ourt’s

conclusion was ‘(1) illogical, (2) implausible, or (3) without support in inferences

that may be drawn from the facts in the record” (citation omitted)). There is

sufficient support in the record for the tax court’s characterization of the

transaction.

The tax court properly held that Tricarichi is liable for West Side’s unpaid

taxes under § 6901 and the Ohio UFTA. See Slone v. Comm’r, 810 F.3d 599, 604

(9th Cir. 2015) (Slone I) (setting forth two-pronged Stern test). Under the state-law

1 We resolve Tricarichi’s challenge to the tax court’s conclusion that Tricarichi is also liable for the “pre-notice interest” component of West Side’s tax liability in a concurrently filed opinion.

2 prong, the tax court properly determined that West Side’s cash was “transferred” to

Tricarichi under the Ohio UFTA. See Ohio Rev. Code Ann. § 1336.01(L)

(defining “transfer” as “every direct or indirect . . . method of disposing of or

parting with an asset”). And, under the federal-law prong, the tax court properly

determined, looking through the form of the stock sale to consider its substance,

that it lacked a non-tax business purpose or any economic substance other than the

creation of tax benefits. See Slone I, 810 F.3d at 605-06; see also Slone v.

Comm’r, 896 F.3d 1083, 1086 (9th Cir. 2018) (Slone II).

AFFIRMED.