Say Pease IV, LLC v. New Hampshire Department of Revenue Administration

42 A.3d 755, 163 N.H. 415

• Court: Supreme Court of New Hampshire
• Decided: March 23, 2012
• Docket: 2011-174
• Status: Published

Opinions

HICKS, J.

The New Hampshire Department of Revenue Administration (DRA) appeals an order of the Superior Court (McHugh, J.) that reversed DRA’s decision assessing a real estate transfer tax against the petitioners, Say Pease, LLC (Say Pease) and Say Pease IV, LLC (Say Pease IV). See RSA 78-B:l (2003). We affirm.

The parties stipulated to the following facts. Two International Group, LLC (TIG) is a real estate holding company. It owns a ground lease on property near Pease International Tradeport that it wanted to use to secure a $10.5 million mortgage loan. To obtain the loan, TIG’s prospective lender required that TIG, and all of its members, be “single purpose bankruptcy remote entities.” This requirement would ensure that creditors other than the prospective lender would be unable to reach the property securing the mortgage loan. Say Pease, holder of a 47.5% interest in TIG and its managing member at the time, was not a single purpose bankruptcy remote entity because it held interests in entities other than TIG.

To comply with the lender’s requirement, the members of Say Pease formed Say Pease IV, a new limited liability company (LLC) with the same members. Say Pease IVs LLC agreement provides that it was “formed for the sole purpose of being a Managing Member and Member of [TIG]” and was not authorized “to engage in any other activity[,] business or undertaking so long as [TIG] shall be indebted under any mortgage or other securitized loan.”

Next, Say Pease’s interest in TIG was transferred to Say Pease IV, and Say Pease IV replaced Say Pease as TIG’s managing member. As a result of these transactions, Say Pease IV owned a 47.5% interest in TIG as a sole purpose remote bankruptcy entity, Say Pease held no interest in TIG, and TIG obtained the $10.5 million mortgage loan.

Based upon this transfer, DRA issued notices assessing the real estate transfer tax against Say Pease and Say Pease IV. After appealing unsuccessfully through DRA’s administrative appeal process, Say Pease and Say Pease IV appealed to the superior court.

The parties filed cross-motions for summary judgment, and the trial court reversed DRA’s order, ruling that the transfer at issue was not a “[contractual transfer,” RSA 78-B:l-a, II (2003), and, therefore, the real estate transfer tax did not apply. See RSA 78-B:l, 1(a); RSA 78-B:l-a, V (Supp. 2011). Following our decision in First Berkshire Business Trust v. Commissioner, New Hampshire Department of Revenue Administration, 161 N.H. 176 (2010), DRA moved for reconsideration. The trial court upheld its initial order, and further ruled that the transaction was exempt from the transfer tax as a “[noncontractual transfer.” RSA 78-B:l-a, III (2003); see RSA 78-B:2, IX (2003). This appeal followed.

We review the trial court’s rulings on summary judgment by considering the affidavits and other evidence in the light most favorable to the non-moving party. First Berkshire Bus. Trust, 161 N.H. at 179. If this review does not reveal any genuine issues of material fact, ie., facts that would affect the outcome of the litigation, and if the moving party is entitled to judgment as a matter of law, we will affirm. Id. We review the trial court’s application of law to the facts de novo. Id.

Resolving the issues on appeal requires statutory interpretation. In matters of statutory interpretation, we are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole. Id. We review the trial court’s statutory interpretation de novo. Id. at 180. When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We read words or phrases not in isolation, but in the context of the entire statute and the entire statutory scheme. Id. When the language of a statute is plain and unambiguous, we do not look beyond it for further indications of legislative intent. Id. We construe an ambiguous tax statute against the taxing authority rather than the taxpayer. Id. However, we do not strictly construe statutes that impose taxes, but instead examine their language in light of their purposes and objectives. Id.

As an initial matter, the parties disagree about the meaning of a stipulation that “through an Assignment and Consent to Assignment Agreement . . . Say Pease IV, LLC bec[a]me the holder of the 47.50% interest in TIG.” DRA contends that this stipulation means Say Pease, as an entity, transferred its interest in TIG to Say Pease IV; the petitioners argue that Say Pease’s members, as individuals, made the transfer. Because we ultimately conclude that the transfer was not taxable, we will assume, without deciding, that DRA’s position is correct and Say Pease, as an entity, was the transferor.

Turning to the assessment of the tax, the parties do not dispute that the transferred interest in TIG is an interest in a real estate holding company and, therefore, presumptively taxable. See RSA 78-B:l-a, V. Indeed, the only issue in the case is whether the transfer is a “[c]ontractual transfer” within the meaning of RSA 78-B:l-a, II.

Under RSA 78-B:l, 1(a), “[e]ach sale, grant and transfer of real estate, and each sale, grant and transfer of an interest in real estate shall be presumed taxable unless it is specifically exempt from taxation under RSA 78-B:2.” RSA 78-B:l-a, V defines a sale, grant and transfer as “every contractual transfer of real estate, or any interest in real estate from a person or entity to another person or entity, whether or not either person or entity is controlled directly or indirectly by the other person or entity.” A contractual transfer is “a bargained-for exchange of all transfers of real estate or an interest therein.” RSA 78-B:l-a, II.

RSA chapter 78-B does not define “bargained-for exchange,” but in First Berkshire Business Trust, 161 N.H. at 181, we said that a bargained-for exchange is an element of “consideration,” which is “the exchange of money, or other property and services, or property or services valued in money for an interest in real estate.” First Berkshire Bus. Trust, 161 N.H. at 181 (quotation omitted); see RSA 78-B:l-a, IV (2003). That case involved two transactions where one company transferred property to another company with the same ownership in exchange for “Ten Dollars and other good and valuable consideration.” First Berkshire Bus. Trust, 161 N.H. at 177-79 (quotation and ellipses omitted). In both transactions, we held that the real estate transfer tax applied to the extent of the property’s full fair-market value. Id. at 183. We noted that, although consideration requires that something be given for the real estate interest, the parties need not exchange “adequate value.” Id. at 182. Moreover, we held that “arm’s length” bargaining is unnecessary to engage in a bargained-for exchange. Id. at 181.

To determine whether the transfer of the TIG interest was contractual, we examine whether Say Pease made the transfer in exchange for “money or other property and services or property or services valued in money.” Id. (quotation omitted). DRA argues that, although no money was exchanged when Say Pease IV replaced Say Pease as TIG’s managing member, the transfer was contractual because Say Pease IV provided consideration in other forms.

First, DRA contends that, because mutual members of Say Pease and Say Pease IV exchanged consideration among themselves in the LLC agreement that formed Say Pease IV, there was consideration for the later transfer of the TIG interest. This argument fails because the consideration that the members exchanged, as individuals, to form a binding LLC agreement was not given in exchange for the later transfer between the entities Say Pease and Say Pease IV. The LLC and its members are two separate legal entities, and we must view them as such. See RSA 304-C:25 (2005) (discussing liability of LLC members); cf. Petition of Lorden, 134 N.H. 594, 600 (1991) (“[T]he stockholders and the corporation are two separate legal entities, and we must view them as such ....”), superseded on other grounds by Laws 1992, 203:1.

In this case, the members of Say Pease, in their capacities as founders of Say Pease IV, exchanged consideration among themselves to form a binding LLC agreement, but they gave nothing to Say Pease, as an entity, because Say Pease was not a party to the agreement. Since Say Pease received nothing, it was impossible for Say Pease to transfer its interest in TIG “in exchange for” the consideration its members recited in an agreement ostensibly unrelated to the later transfer. See RSA 78-B:l-a, IV. Absent some benefit to Say Pease in exchange for the transfer, the mutual consideration recited in Say Pease IV’s LLC agreement fails to render transfer of the TIG interest contractual for purposes of the real estate transfer tax.

Moreover, although DRA must “look to the substance of the transaction or series of transactions” to determine if a taxable transfer has occurred, RSA 78-B:9, II (2003), here, there is no evidence that the obligations the members assumed in Say Pease IV’s LLC agreement were undertaken “in exchange for” the later transfer. The agreement purported to create mutual obligations among the members to use “commercially reasonable efforts to further the interests of the Company,” but made no mention of a requirement that any member transfer property to Say Pease IV. The parties here did not employ a business entity as a shield for an otherwise taxable exchange of value for an interest in property. To the contrary, the members who executed Say Pease IV’s LLC agreement sought to maintain TIG’s original ownership while placing it in a suitable financing vehicle; the promises exchanged related to the creation of the financing vehicle, Say Pease IV, not the subsequent property transfer. Thus, the substance of the transaction here fails to create a bargained-for exchange because there was no “exchange of money, or other property and services, or property or services valued in money for an interest in real estate.” First Berkshire Bus. Trust, 161 N.H. at 181 (quotation omitted).

We also reject DRA’s argument that there was consideration in the form of Say Pease IV’s “promise” not to engage in activities other than managing TIG. To the extent Say Pease IV made such a promise, it was an accommodation to TIG’s lender, not consideration for the transfer. “A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.” Restatement (Second) of Contracts § 71(2), at 172 (1981). Here, Say Pease did not transfer the property because it wanted Say Pease IV to limit the scope of its business. Rather, Say Pease made the transfer and Say Pease IV made the promise in order to secure a loan for TIG. Although the parties may have undertaken certain obligations to obtain the loan, these obligations were not “exchanged” for the transfer of the interest in TIG, but constituted steps in a transaction calculated to enable TIG to obtain the loan.

Moreover, contrary to DRA’s argument, First Berkshire Business Trust, 161 N.H. at 183, does not require us to conclude that, because the transfer enabled TIG to obtain a mortgage loan, the “tangible benefits afforded” by the transaction created a bargained-for exchange. In First Berkshire Business Trust, we held that DRA could assess the transfer tax on the full fair-market value of the property transferred because “DRA reasonably could have determined that the tangible benefits afforded [by the transfer] far exceeded the ten dollar purchase price.” First Berkshire Bus. Trust, 161 N.H. at 183. In one of the transactions in that case, a parent company, which owned both the transferor and the recipient of a piece of real property, “obtained] better repayment terms” because of the transfer. Id. at 179.

We held that the owner’s ability to refinance afforded “tangible benefits” to the transferor company, and that these tangible benefits constituted the “actual consideration” for the transfer. Id. at 183; see RSA 78-B:9, III (2003). Although the opinion did not explicitly discuss how the owner’s ability to refinance tangibly benefitted the transferor company, the reason is self-evident. In that case, the two successive transferee companies were wholly-owned subsidiaries of the original owner of the property. First Berkshire Bus. Trust, 161 N.H. at 178. Because the owner directly benefitted and exercised exclusive control over each successive transferee, DRA could reasonably infer that, roughly speaking, each transfer was made “in exchange for” the benefit that its owner received. See id. at 183.

Thus, two elements enabled us to find consideration in First Berkshire Business Trust: (1) there was a complete identity of interest between the transferor company and its owner; and (2) the owner directly and tangibly benefitted from the transfer of real property. Presented with these two elements, we held that DRA could reasonably infer that the “substance of the transaction” was a transfer by the transferor company to obtain the benefit its owner received, and that DRA could assess the transfer tax based upon this benefit. RSA 78-B:9, II.

In this case, although Say Pease’s members owned it entirely, they received no direct benefit from the transaction. The members did not transfer the TIG interest to obtain better repayment terms for themselves, as was the case in First Berkshire Business Trust, but to benefit TIG. See First Berkshire Bus. Trust, 161 N.H. at 179. TIG obtained the mortgage loan, and the members of Say Pease, the transferor entity received no direct benefit at all. To the extent that Say Pease’s members benefitted as a result of TIG receiving the mortgage loan, they did so in their capacities as members of Say Pease IV. Unlike the owner in First Berkshire Business Trust, the only benefit the members in this case arguably received resulted from their ownership of the transferee company.

Such an attenuated benefit to the transferee company, however, cannot serve as consideration for the transfer. In First Berkshire Business Trust, because tangible benefits flowed directly to the transferor company’s owner, we held that the transferor benefitted as well. See First Berkshire Bus. Trust, 161 N.H. at 183. Here, DRA urges that there is a bargained-for exchange because TIG benefitted by obtaining a mortgage loan, which in turn benefitted Say Pease IV, which in turn benefitted Say Pease IV’s members. This benefit, DRA argues, must be imputed to Say Pease, the transferor company, because its members own an interest in the true “beneficiary” of the transfer, TIG.

We are not inclined to extend First Berkshire Business Trust’s reach to permit DRA to trace the benefits through multiple layers of ownership back to an original transferor. When a complete identity of interest between a beneficiary and the transferor exists, imputing the benefits one receives to the other, as we did in First Berkshire Business Trust, is supportable. But here, given the attenuated relationship between the beneficiary, TIG, and the transferor, Say Pease, there is no reason to assign the benefits that one entity received to the other.

Thus, we reject DRA’s argument that, in light of First Berkshire Business Trust, upholding the trial court’s decision in this case leads to an absurd result. There is nothing absurd about the distinction we draw today. First Berkshire Business Trust, 161 N.H. at 182-83, held that if a transaction directly benefits the owner of a subsidiary transferor company, the benefit may constitute consideration, and DRA can tax the transfer. Here, we simply say that, if there is no direct benefit to the party controlling a transferor entity, the transfer tax does not apply.

Because we uphold the trial court’s finding that the transaction here was not a contractual transfer, we need not address whether it also falls within the separate, non-contractual transfer exemption under RSA 78-B:l-a, III and RSA 78-B:2, IX.

Affirmed.

CONBOY and LYNN, JJ., concurred; DALIANIS, C.J., dissented.