U.S. Tr. v. Elsass (In re Elsass)

597 B.R. 860
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedMarch 22, 2019
DocketCase No. 16-57091; Adv. Pro. No. 17-2067
StatusPublished
Cited by1 cases

This text of 597 B.R. 860 (U.S. Tr. v. Elsass (In re Elsass)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Tr. v. Elsass (In re Elsass), 597 B.R. 860 (Ohio 2019).

Opinion

Charles M. Caldwell, United States Bankruptcy Judge

This Memorandum Opinion and Order serves as the Court's findings of fact and conclusions of law. The United States Trustee (Plaintiff) alleges that Tobias Harold Elsass (Defendant) concealed property and provided false information when filing his bankruptcy case. This pattern continued during the course of administration. Plaintiff seeks denial of Defendant's discharge under Sections 727(a)(2)(A) and (a)(4)(A) of the United States Bankruptcy Code (Code).

Based upon the pleadings, exhibits, and testimony, including credibility assessments, the Court finds and concludes that Plaintiff sustained its burden of proof, and that Defendant is not entitled to receive a bankruptcy discharge. A brief summary of this case and the bases for the ruling follow.

*864To provide some key background information, Defendant has a long and mixed employment history. His career consists of practicing as an attorney for eighteen years. This included trial, probate and domestic relations work. Defendant's career history also later involves ownership of a construction business, tax return preparation for investment fraud victims, assisting homeowners facing foreclosure, and most recently, the marketing of legalized medical marijuana. In terms of education, Defendant graduated from the Ohio State University in 1976 with a Bachelor of Science Degree in labor law, and three years later graduated from Capital University Law School in 1979.

The Defendant, however, is no novice to the bankruptcy process, filing bankruptcy before on October 13, 2005 (Case No. 05-73544). In that proceeding, Defendant received a Chapter 7 discharge on October 26, 2006, except for a May 15, 2002, Ohio Court of Common Pleas Judgment for $ 92,126.53. This sum included $ 40,000.00 in punitive damages. In the related adversary proceeding (Adv. No. 05-2611), the bankruptcy court issued a default judgment for this sum ($ 92,126.53) on October 31, 2006. According to this Court's docket, the litigation involved fraud in the purchase of real estate while Defendant practiced law. Indeed, the underlying decision of the Common Pleas Court cites as support, three instances in which the Ohio Supreme Court suspended Defendant's law license. (See also Columbus Bar Association v. Elsass , 86 Ohio St. 3d. 195, 713 N.E.2d 421 (1999) ; Columbus Bar Association v. Elsass , 74 Ohio St. 3d. 174, 657 N.E.2d 500 (1995).

In addition to the law practice, Defendant owned, controlled and/or participated in various entities including: a. Don Ash Properties (DAP); b. Sensible Tax Services, Inc. (STS); c. Fraud Recovery Group, Inc. (FRG); d. Fraud Recovery Group Nevada, LLC (FRGN); e. Investment Tax Recovery, Inc. (ITR); f. Save Our Shack, Inc. (SOS); g. Tee Hee Co Inc (THC); h. Starbuds, Inc. (Star); and i. Fairman Services Inc. (Fairman).

Regarding locations, Defendant has participated in businesses in Nevada and Colorado, as well as from his Columbus, Ohio home and an office building in Worthington, Ohio. Defendant even recruited his Son, Donald P. Elsass, who has participated in the management and/or ownership of some of these enterprises. Our focus in this Memorandum Opinion and Order, however, is primarily upon Plaintiff's allegation that Defendant fraudulently concealed and provided false information for his interests in five entities, ITR, SOS, THC, Star and Fairman.

Having concluded our review of the context of this litigation, we now move to consideration of the testimony and numerous documents. Note, that in this endeavor the Court has to the fullest extent possible, placed key events in some semblance of chronological order. However, as an alert, we will be weaving our way through a rather complicated series of enterprises, with as much finesse as time and reason allow.

As such, we begin this discussion with April 2003, when Defendant started working for JK Harris & Company (JKH), located in Florida. Through JKH, Defendant practiced a form of tax law in which he obtained deductions for alleged victims of investment fraud. See 26 U.S.C. § 165(c)(2). Defendant worked for this entity through December 2005. On January 24, 2006, Defendant formed FRG, and through this company Defendant continued *865the same tax business but based in Ohio. According to Defendant, at its height, FRG controlled 1% of the market share of this tax specialty.

Defendant testified that FRG's scale, however, drew the attention of the Internal Revenue Service (IRS), which first investigated this enterprise in 2007, including the alleged existence of offshore bank accounts. In addition, the success of FRG prompted Defendant's rental of office space in Las Vegas, Nevada in 2009, where he expanded the tax return preparation business to that State through the entity FRGN. Defendant explained a third party earlier formed FRGN, but that he now owns this company. The IRS returned to investigate Defendant sometime that same year (2009). Defendant testified that based upon this examination, the IRS assessed federal income tax on all his bank accounts, including funds held in trust for tax clients.

As a result of this investigatory process, on April 19, 2010, the United States Department of Justice, Tax Division (DOJ), sued Defendant and two of his businesses (FRG and STS). DOJ pursued this litigation in the United States District Court for the Southern District of Ohio, and sought to permanently enjoin Defendant and his businesses in their ongoing tax practice. Three years later on October 17, 2013, the District Court issued a permanent injunction against Defendant personally, as well as the two entities (FRG and STS). This injunction barred future tax work, but allowed continued service to existing clients. A year later on September 12, 2014, this ruling withstood an appellate challenge.

In the midst of this litigation Defendant alleges that he purchased Fairman in 2010. This Oklahoma entity, however, was originally formed on August 28, 2007. Defendant explained that Fairman was a "shell" company, which he purchased for $ 15,000.00. According to Defendant, he needed an established entity to qualify for a bank loan to sustain his tax practice. Two years after the acquisition of Fairman, Defendant formed SOS on November 2, 2012, and owns 100%. It was a marketing business through which Defendant paired Franklin County, Ohio residents facing foreclosure, with attorneys.

After the formation of SOS, Defendant incorporated ITR on January 7, 2013. He took this action to continue the tax practice prior to entry of the District Court injunction discussed above. However, Defendant asserts he transferred ITR a year later in 2014 to his Son, Donald P. Elsass.

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Bluebook (online)
597 B.R. 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-tr-v-elsass-in-re-elsass-ohsb-2019.