Thomas v. United States

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0179P (6th Cir.) File Name: 00a0179p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  ROY V. THOMAS; ELOISE F.  THOMAS,  Plaintiffs-Appellants,  No. 99-3532

 v. >  UNITED STATES OF AMERICA,  Defendant-Appellee.   1 Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 96-00369—Algenon L. Marbley, District Judge. Argued: April 27, 2000 Decided and Filed: May 26, 2000 Before: KENNEDY, SILER, and BATCHELDER, Circuit Judges. _________________ COUNSEL ARGUED: Arnold O. Zacks, ZACKS LAW GROUP, Columbus, Ohio, for Appellants. Paula K. Speck, U.S. DEPARTMENT OF JUSTICE, APPELLATE SECTION TAX DIVISION, Washington, D.C., for Appellee. ON BRIEF: Arnold O. Zacks, ZACKS LAW GROUP,

1 2 Thomas, et al. v. United States No. 99-3532 No. 99-3532 Thomas, et al. v. United States 11

Columbus, Ohio, Nathan A. Durst, Columbus, Ohio, for lottery winners. Instead, all of these funds are commingled, Appellants. Paula K. Speck, Frank P. Cihlar, U.S. either in the Gross Revenue Fund or the Lottery Operating DEPARTMENT OF JUSTICE, APPELLATE SECTION Fund. Should the commission become financially unable to TAX DIVISION, Washington, D.C., for Appellee. pay all of the claims made against it, all of the lottery winners would be entitled to the same priority in making their claims _________________ on the monies in these funds. Plaintiffs’ award was not placed in an irrevocable fund because it was subject to the OPINION claims of other lottery winners. In Pulsifer, although the three _________________ taxpayers had rights in the same fund, they were each entitled to a fixed sum in that fund that was not subject to the rights of KENNEDY, Circuit Judge. Plaintiffs1, Roy V. Thomas and the other taxpayers. Plaintiffs’ rights to the money in the Eloise F. Thomas, appeal the district court’s decision to grant “constructive trust” were subject to the rights of other lottery summary judgment in favor of the defendant, United States of winners; therefore, the “constructive trust” was not America, in this tax refund action. Plaintiffs raise one issue irrevocable. on this appeal: (1) whether the district court erred in determining that the plaintiffs’ lottery income did not fall We do not believe that the plaintiffs have identified a fund within the economic benefit doctrine under 26 U.S.C. § 61. in which they obtained an irrevocable right which would We believe that the district court was correct in finding that entitle them to apply the economic benefit doctrine to their this doctrine did not apply; thus, we affirm the decision of the income taxes. Because the plaintiffs have not shown that they district court. are entitled to a tax refund we believe that the district court was correct in granting summary judgment in favor of the I. Facts government. On December 11, 1992, plaintiff Roy Thomas purchased III. Conclusion ten Ohio Super Lotto tickets at $1 each and selected the Cash Option method of payment. The following evening, plaintiff For the foregoing reasons, we affirm the judgment of the won the Super Lotto Jackpot prize pool when the six numbers district court. on one of the plaintiff’s tickets were drawn. The prize pool for a cash option winner was worth $8,890,597. On December 14, 1992, plaintiff presented his ticket to a lottery employee and received a receipt for a winning 6/6 Super Lotto ticket. While the Ohio state lottery commission issued a news release on December 14, 1992, declaring plaintiff as the winner of the Super Lotto, it took approximately six weeks to process his claim. On January 4, 1993, the lottery produced

1 Eloise Thomas is identified as a plaintiff in this action because she filed a joint tax return with Roy Thomas. 10 Thomas, et al. v. United States No. 99-3532 No. 99-3532 Thomas, et al. v. United States 3

Section 3770:1-5-10(A) of the Ohio Administrative Code7 a pay ticket with respect to plaintiff’s claim. Prior to issuing provides a warrant to the plaintiff, the claims department sent a pay-list The moneys in the lottery fund shall be appropriated in and summary voucher to the Office of Budget Management the following order, and only for the following purposes: [“OBM”] for approval. The OBM confirmed that sufficient (1) repayment into the General Revenue Fund of the monies were available in the state lottery fund to pay the amount8appropriated for the implementation of the State claim and transferred the summary to the office of the Auditor lottery; to prepare a warrant for the payment of the funds owed to the (2) payment of prize awards to holders of winning lottery plaintiff. Plaintiff presented this warrant for payment to the tickets . . . National City Bank on January 28, 1993. (3) payment of expenses . . . (4) payment into the General Revenue Fund of all net Plaintiffs filed joint income tax returns for 1992 and 1993 revenues. using the cash receipts and disbursements method of accounting. They reported the gross winnings on their lottery Plaintiffs argue that this section establishes that lottery ticket on their 1993 tax return. On December 27, 1994, they winners have priority over the state’s other creditors, thus, the filed an administrative claim for a refund contending that the fund is protected from the state’s creditors. Although we do income should have been reported in 1992. They not agree with the plaintiffs’ contention that the economic acknowledged that if their claim was allowed they would be benefit doctrine applies even when the fund is subject to the obligated to pay the tax in 1992 and that the taxes and interest payor’s creditors, if the beneficiary is a senior creditor, our due on their 1992 tax liability would be offset against their resolution of that issue is not necessary because the fund 1993 tax refund resulting in a total refund of $778,496. The remains subject to the payor’s creditors – other lottery IRS denied their claim. On April 12, 1996, plaintiffs filed winners. Plaintiffs concede that state law does not this complaint in district court requesting a refund of income differentiate among lottery winners in terms of priority to the taxes paid for the calendar year of 1993. On March 30, 1999, monies in these funds, but plaintiffs assert that the economic the district court granted the government’s motion for benefit doctrine does not require that a fund be established for summary judgment, denied the plaintiffs’ motion for the sole benefit of a taxpayer, citing the fund in Pulsifer as an summary judgment, and dismissed the plaintiffs’ complaint. example. The Pulsifer court applied the doctrine to a fund Plaintiffs timely appeal. maintained for the benefit of three minors. 64 T.C. at 246. The “fund” in this case differs significantly from the one II. Discussion considered in Pulsifer. Because this fund is a “constructive trust” it is not separated from the “trusts” belonging to other This court reviews a district court’s decision to grant summary judgment de novo. Thomas v. United States of America, 166 F.3d 825, 828 (6th Cir. 1999). We will affirm 7 the district court’s decision if we find that there are no “An Ohio Administrative Code section is a further arm, extension, material factual disputes and that the United States is entitled or explanation of statutory intent implementing a statute passed by the to judgment as a matter of law. See Fed. R. Civ. P. 56(c). General Assembly. It has the force and effect of a statute itself.” Meyers v. Ohio State Lottery Comm’n, 517 N.E.2d 1029, 1031 (1986). The moving party has the burden of establishing that there are no genuine issues of material fact, see Celotex Corp. v. 8 This requirement was satisfied six months after the state lottery Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 began operating, thus, the lottery winners have first priority to the funds L.Ed.2d 265 (1986), and we must view all evidence in the maintained by the state lottery commission. 4 Thomas, et al. v. United States No. 99-3532 No. 99-3532 Thomas, et al. v. United States 9

light most favorable to the non-moving party. See Adickes v. had not completed the verification process necessary to S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 confirm that the plaintiffs were the winners of the Super Lotto L.Ed.2d 142 (1970). Both parties agree that there are no jackpot. This verification process was a condition on the issues of material fact; therefore, we can resolve this case by plaintiffs’ receipt of the lottery award. Until the state determining whether the economic benefit doctrine is completed this verification process, the plaintiffs were not applicable. Because the plaintiffs have not proven that they entitled to the monetary award. Although the plaintiffs are qualify for a tax refund we affirm the judgment of the district correct in saying that the owner of the winning lottery ticket court. had an absolute right to the award once the individual filed his claim, the issue before the court is whether the taxpayer had Plaintiffs report their income for federal income tax an absolute right to the award. Because the plaintiff taxpayers purposes under the cash receipts and disbursements method were not considered to be the owners of the winning lottery of accounting. See 26 U.S.C. § 446(c)(1). Under this ticket until the state completed its verification process they method, they report income in the year of receipt and deduct did not have an absolute right to the award in 1992. The expenses in the year of payment. See 26 U.S.C. § 451 (a). plaintiffs received no present financial benefit from the lottery While the plaintiffs did not receive their lottery winnings until award until 1993; therefore, they are not entitled to a refund 1993,2they argue that the winnings constituted income in based on the economic benefit doctrine. 1992. Plaintiffs’ argument in support of their contention that they are entitled to a refund for income taxes paid in 1993 is Plaintiffs’ “constructive trust” argument also fails to satisfy based on the economic benefit doctrine. The economic the economic benefit doctrine because the award was not benefit doctrine was developed in response to the use of secure from the claims of the state’s creditors. Unlike deferred compensation plans for employees. See Sproull v. traditional cases where courts have applied the economic Commissioner, 16 T.C. 244 (1951), aff’d per curiam, 194 benefit doctrine, this case does not involve the transfer of F.2d 541 (6th Cir. 1952). It was intended “to include in funds to a third party and beyond the reach of the payor’s taxable income any economic or financial benefit conferred creditors. See, eg., Anastasio v. Commissioner, 67 T.C. 814, on the employee as compensation, whatever the form or mode 817 (1977); Pulsifer, 64 T.C. at 247; Sproull,16 T.C. at 247- by which it is effected.” Commissioner v. Smith, 324 U.S 48. Plaintiffs argue that the doctrine does not require a 177, 181, 65 S.Ct. 591, 593, 89 L.Ed. 830 (1945). The transfer to a third party, but instead, only requires that the doctrine provides for the taxation of financial benefits that are payor relinquish control over the funds. The plaintiffs assert (1) fixed; (2) located in an irrevocable fund; and (3) not that state law governs the use of these monies and restricts the subject to the payor’s debtors. See Sproull, 16 T.C. at 247-48. lottery commission’s use of these funds. Plaintiffs point to “It is based on the theory that the promise to pay deferred numerous provisions of Ohio law which state that lottery compensation in the future in and of itself under certain winners’ awards should be paid from the State Lottery Gross circumstances may constitute an economic benefit or the Revenue Fund and/or the State Lottery Operating Fund. See equivalent of cash to be taxed currently at present value, if it Ohio Rev Code. § 3770.06(A); see also Ohio Admin. Code can be valued currently with some exactness.” McDonald, § 3770:1-5-10. These same provisions, however, also provide for the payment of the state’s creditors from these funds. While plaintiffs are correct in their assertion that state law restricts the use of these funds, these restrictions are not 2 sufficient to secure the plaintiffs’ award from other lottery In 1993, Congress instituted higher tax rates for taxpayers with winners. income over $250,000. 8 Thomas, et al. v. United States No. 99-3532 No. 99-3532 Thomas, et al. v. United States 5

Plaintiffs argue that this trust was created in the State Lottery Deferred Compensation: Conceptual Astigmatism, 24 Tax L. Gross Revenue Fund and then transferred to the State Lottery Rev. 201, 204 (1969). Operating Fund from which the plaintiffs were paid. It is to this “constructive trust” that the plaintiffs believe this court In Pulsifer v. Commissioner, 64 T.C. 245 (1975), the tax should apply the elements of the economic benefit doctrine. court extended this doctrine to sweepstakes winnings. In Even if we accept the plaintiffs’ definition of the fund,6 we do Pulsifer, the court held that three minors’ winnings from an not believe they have shown that the economic benefit Irish lottery were taxable in the year in which the funds were doctrine applies. The plaintiffs cannot establish that they had deposited with the court. Id. at 247. Under Irish law, minors an irrevocable right to this fund or that this fund was not were not entitled to lottery winnings until they reached the subject to the lottery’s creditors. age of majority. Pending the minors’ majority, these winnings were placed in a fund administered by the court. The “constructive trust” fund fails to satisfy the economic The taxpayers argued that they should not have to pay taxes benefit doctrine because the plaintiffs’ right to the monies in on these winnings until they received the winnings at the age this fund was contingent as of the end of 1992. Plaintiffs of majority. Id. at 246. The court disagreed and held that the contend that once they filed their claim as the owners of the economic benefit doctrine was applicable. The court stated winning lottery ticket, they had done all that was necessary for them to be entitled to the lottery award; therefore, as of [u]nder the economic-benefit theory, an individual on the December 14, 1992, they received a present financial benefit cash receipts and disbursements method of accounting is from their lottery award. Contingency, however, does not currently taxable on the economic and financial benefit turn simply on the taxpayer’s action. Rather, to satisfy this derived from the absolute right to income in the form of element of the doctrine the plaintiffs must show that their a fund which has been irrevocably set aside for him in receipt of the award was conditioned only upon the passage trust and is beyond the reach of the payor’s debtors. of time. See Stiles v. Commissioner, 69 T.C. 558, 569 (1978). This, they cannot do. As of the end of 1992, the commission Id. The court found that the lottery winnings were held in an irrevocable trust for the benefit of the minors that was not subject to the lottery’s creditors. In these circumstances, the 6 court held that it was appropriate to tax the winnings in the The government contends that the plaintiffs, in their administrative year in which the fund was created because the fund conferred challenge to the IRS’s refusal to award them a refund, argued that their winnings were maintained in the State Lottery Gross Revenue Fund which an economic benefit on the minors. Id. at 247. constituted the irrevocable fund to which the doctrine should be applied. Before the district court, the plaintiffs asserted that the fund was the In analyzing whether the plaintiffs were entitled to a tax amount of the lottery award generated from the sales of tickets for the refund based on the economic benefit doctrine, the district Super Lotto drawing of December 12, 1992. The government argues that court considered whether the plaintiffs had satisfied the three the plaintiffs waived their right to argue that the Lottery Fund and/or the “prize pool” constitute an irrevocable fund because the plaintiffs did not elements of the doctrine: (1) the existence of a fund in which raise these claims in the administrative proceeding. See Salyersville Nat’l money has been placed; (2) that is irrevocable and beyond the Bank v. United States, 613 F.2d 650, 651 (6th Cir. 1980). In response to reach of creditors; (3) in which the beneficiary has vested this variance defense, the plaintiffs state that the government waived its rights to the money, with receipt conditioned only on the right to assert this defense by its failure to raise it before the district court. passage of time. The district court held that the plaintiffs See id.; see also Tucker v. Alexander, 275 U.S. 228, 230-31, 48 S.Ct. 45, were not entitled to the application of the economic benefit 46, 72 L.Ed. 253 (1927). Because we believe the plaintiffs’ argument fails regardless of which fund this court attributes the plaintiffs’ award we doctrine because the lottery award did not satisfy any of the do not think it is necessary to resolve this issue. 6 Thomas, et al. v. United States No. 99-3532 No. 99-3532 Thomas, et al. v. United States 7

elements of the doctrine. We believe that the district court’s Fund. The commission requires that all lottery awards over analysis was correct. $5,000 be paid from warrants issued by the Office of Budget and Management from the state lottery fund in the state’s The primary difficulty with this case is the identification of general revenue account.4 This voucher entitles the owner to the fund in which the plaintiffs claim to have an irrevocable payment from the Lottery Operating Fund maintained in the right. In their administrative claim, the IRS construed the Ohio General Revenue Fund. The Gross Revenue Fund is a plaintiffs’ claim as contending that they were entitled to apply distinct bank account separate from the General Revenue the economic benefit doctrine to their lottery winnings Fund bank account. The plaintiffs could not have received because the State Lottery Gross Revenue Fund3 constituted payment for their award from the Gross Revenue Fund; the fund in which they had an irrevocable right to a fixed sum. therefore, the argument that this fund constitutes the fund in The Gross Revenue fund is a custodial account, which is which the plaintiffs’ lottery winnings were maintained and in under the control of the State Treasurer but not part of the which they5 received a present economic benefit is not State Treasury, and its assets are not commingled with the persuasive. assets of the State Treasury. See Ohio Rev. Code § 3770.06(A). It is funded by the transfer of monies from The plaintiffs, however, state that this court should not lottery sales agents. See Ohio Admin. Code § 3770:1-4-04. construe their claim as an entitlement to monies maintained Plaintiffs stated that once they claimed their prize on in the Gross Revenue Fund or any other fund defined by the December 14, 1992, they had an unconditional entitlement to state. Instead, plaintiffs argue that they have an irrevocable the fixed sum of $8,980,597 maintained in this fund. Because right to a fixed sum, the amount of their lottery award, held in this fund was a custodial fund and separate from the state’s a “constructive trust” maintained by the state of Ohio. This other accounts, plaintiffs argued that it was not subject to the trust was funded by the ticket sales for the Super Lotto state’s general creditors. Plaintiffs contended that this fund drawing on December 12, 1992, and the plaintiffs contend satisfies all the elements of the economic benefit doctrine; that they gained an irrevocable right to the award when they therefore, they were entitled to a tax refund. presented the winning ticket on December 14, 1992. We agree with the IRS that if the plaintiffs’ claim is identified as an irrevocable right to money contained in the 4 Gross Revenue fund, it must fail because the plaintiffs’ lottery The commission pays awards greater than $5,000 by warrant award was not funded by the State Lottery Gross Revenue because it is required to deduct withholding taxes for these prizes. See 26 U.S.C. § 3402(q). 5 3 In addition, this argument fails because this fund was subject to the Lottery awards are funded by a portion of the ticket sales for each state’s creditors. Although this fund is separate from the state’s general week’s lottery drawing. The winning ticket number is announced on account and not subject to the state’s general creditors, it is subject to the Saturday evening. The following Tuesday, the revenue generated by state’s lottery creditors. Ohio law provides that the Gross Revenue Fund ticket sales from the previous week is swept into a Gross Revenue Fund should be used to pay not only lottery winners, but also sales agents’ which is separate from the state treasury. From this fund, the commission bonuses, commissions, and reimbursements. See Ohio Rev. Code pays smaller cash lottery prizes and certain lottery expenses, such as § 3770.06(A). The agents are state creditors, thus, the fund is not beyond credits to banks and commissions to licensed sales agents. The next day, the reach of the payor’s creditors. Also, unlike the State Lottery Fund, the the remaining moneys in the Gross Revenue Fund are transferred to the Gross Revenue Fund does not set forth a priority order for payments. state treasury. For bookkeeping purposes, the lottery monies are Any right the plaintiffs had to the monies in the Gross Revenue Fund was accounted for in three funds: the Lottery Operating Fund, the Deferred subject to the claims of the other creditors, lottery winners and sales Prizes Fund, and the Unclaimed Prizes Fund. agents, and the plaintiffs did not have priority over any of these creditors.