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VOL. 39 | NO. 39 | Friday, September 25, 2015

From Banner to bankruptcy

IRS accepts $175K of $13.5M owed in final disposition of Simpkins case

By Kathy Carlson

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More than 17 years after the Nashville Banner ceased publication, another chapter in the story – perhaps the last – has been written in Winchester’s Eastern District bankruptcy court with the final disposition of Irby C. Simpkins Jr.’s Chapter 7 case.

Simpkins, 71, who with business partner Brownlee O. Currey Jr. owned the city’s 122-year-old afternoon newspaper before selling it for closure to Gannett in 1998, had filed for bankruptcy as an individual in November of 2012. He listed assets of $1.675 million and liabilities of $13.5 million.

The former Banner publisher filed in Winchester, whose bankruptcy court serves eight southern Middle Tennessee counties, including Bedford, where Simpkins lives. Simpkins’ case was closed – officially over in court – this July. He and his attorney in the case, Jerrold Farinash of Chattanooga, declined to comment for this article.

By far the largest liability that Simpkins listed was almost $12.5 million owed to the Internal Revenue Service. About $5.1 million of that was for taxes, the rest for interest and penalties.

When the case was finished, the IRS had received $175,780.73 on its revised claim of $13,448,577.81 – about 1.3 cents on the dollar.

The tax bill had arisen from the millions that Gannett, parent company of The Tennessean, USA Today and 80 more newspapers, paid to the Banner’s co-owners, Simpkins and Currey, when the Banner ceased publication in 1998.

In short, Simpkins had invested some of his roughly $20 million in Banner proceeds in tax shelters. The IRS later questioned the validity of those shelters, the case was litigated in the U.S. Tax Court and, in November 2011, the Tax Court found that Simpkins underpaid his taxes by a total of more than $5.1 million for the years 1996 through 1999.

The court also assessed a penalty and interest, and the court’s order indicates that Simpkins and the IRS agreed on its decision. There’s never been any finding of wrongdoing by Simpkins in connection with the contested tax-shelter investment.

Then, in 2012, Simpkins initiated the bankruptcy filing in Winchester. It was the first and only time Simpkins sought protection in bankruptcy, according to online federal court records. That year, more than 1.22 million bankruptcy petitions were filed across the United States, about 97 percent of which were consumer bankruptcies.

In Tennessee, 44,226 bankruptcies were filed that year.

Bankruptcy and the IRS

Most consumers filing for bankruptcy also owe taxes, says Margaret Howard, who teaches bankruptcy law at Washington and Lee University in Virginia.

Moreover, it’s possible and perfectly legal to discharge certain federal income tax debts through bankruptcy, attorneys say. If a debt is discharged, it means the debtor is no longer personally liable to pay, although the IRS may have a separate legal right to use the debtor’s property owned at the time of the bankruptcy toward payment of the taxes.

The rules for discharging tax debt are complicated, and it’s not widely known that it’s even possible, says Florida tax attorney R. Lawrence Heinkel, whose practice centers on the discharge of tax debts in bankruptcy.

Those rules allowing bankruptcy discharge of tax debt have been around for the 32 years Heinkel has been in practice, he says, although he didn’t learn of the power bankruptcy has over income tax debts until he had been practicing a few years. He says his clients have millions in tax debts discharged every year.

The former Banner publisher’s bankruptcy is intertwined with the Banner and its closing and has been researched from public records, news accounts and interviews with attorneys specializing in bankruptcy who weren’t involved in the case.

Nashville Banner background

When the Banner closed in February 1998, it and Nashville’s morning newspaper, The Tennessean, had been publishing under a joint operating agreement first signed in 1937. With the JOA, the two papers remained independently owned and editorially separate, but they handled the business end of operations together.

At the time of the JOA’s signing, Silliman Evans Sr. owned The Tennessean and Nashville’s Stahlman family owned the Banner.

The newspapers changed hands over the years. The Stahlmans sold the Banner to Gannett Co. Inc. for $14.1 million in 1972. Seven years later, in July 1979, Gannett sold the Banner to Simpkins, Currey and attorney John Jay Hooker, and acquired The Tennessean for $50 million.

In the 1980s, Simpkins and Currey bought out Hooker’s interest in the Banner. The terms of the JOA were renegotiated in that decade.

Over the years, however, the public’s appetite for afternoon newspapers dwindled. As of Feb. 20, 1998, the Banner’s last day, its circulation was 40,633, down from 61,746 at the end of 1991 and far below a reported peak of about 100,000.

‘’Nothing has been more frustrating to me during the past 18 years than to receive such solid reader feedback about our work, and yet to watch our circulation steadily decline,’’ Simpkins wrote in a Feb. 16, 1998 letter to readers that was reported in The New York Times. ‘’When our circulation went from 42,100 in September to 39,839 in January 1998, it was clear too many readers were no longer choosing our product.’’

Simpkins said in an interview with The Times that he and his business partners chose to close the Banner because of the irreversible circulation trends and because they believed it was a good time for its 94 staff members to seek work elsewhere because the economy was strong.

Investing proceeds from sale

The amount Gannett paid Simpkins and Currey in connection with their closure of the Banner wasn’t disclosed immediately.

The Nashville Scene reported in June 1998 that Gannett paid a lump sum of $65 million, citing public documents the newspapers were required to file with the U.S. Department of Justice in the event of a change in the joint operating agreement.

Some of Simpkins’ share of the payout was invested in tax-sheltered vehicles recommended by his accountants, according to a 2002 Tennessean article reporting that the investments were being audited by the IRS. The article was based on sworn statements filed in litigation in a divorce dispute with his former wife, Peaches G. Blank, along with interviews. Simpkins and Blank divorced in 2000.

Simpkins and his financial adviser, then with the accounting firm of PricewaterhouseCoopers, testified the transaction involved investments in a Cayman Island company and in Union Bank of Switzerland, plus options to buy and sell UBS stock, The Tennessean reported.

A $4 million investment by Simpkins became a $30 million tax loss, according to the newspaper. All of the transactions were completed by the end of 1998, and the short-term loss could be applied against Simpkins’ share of the gains realized from Gannett’s payments in connection with the closure of the Banner, the Tennessean article stated.

Simpkins’ attorney in the divorce litigation, Rose Palermo, told The Tennessean that Simpkins acted on advice from his investment brokers and his accountant in making the investments later audited.

“Obviously, he wouldn’t have made the investment if he thought it was wrong or it wouldn’t be allowable,” she said.

(The Wall Street Journal reported in June 2002 that PricewaterhouseCoopers had agreed to a settlement with the IRS under which it would disclose information to the government on its tax shelters and clients who used them. The firm didn’t admit to any wrongdoing in connection with IRS rules requiring tax-shelter promoters to register tax-shelter programs and clients with the government.)

Simpkins battles the IRS

Three years later, in 2005, Simpkins sued the IRS in the U.S. Tax Court. The Tax Court ruled against him in November of 2011, finding tax deficiencies from 1996 through 1999 that totaled more than $5 million.

Almost $4.7 million of the deficiency was from the 1998 tax year, when Gannett paid for closure of the Banner. The Tax Court tacked on more than $1.8 million in penalties – 40 percent of the 1998 deficiency – and said that interest would also accrue.

Simpkins spoke about the tax court litigation to the now-defunct Nashville City Paper in February 2012, stating he had been fighting the IRS for 10 years and was ready to move on.

“I went for 10 years without being able to have my case heard,” Simpkins said. “… And so the reality was that after 10 years, it was insane for me, at 68, to continue with this kind of worry and frustration and not be able to deal with the Internal Revenue [Service]. At that time my attorney and I decided the best thing to do was just settle this.”

The City Paper article stated Simpkins declined to say whether he had paid the sum.

In November 2012, Simpkins filed his voluntary Chapter 7 petition in the U.S. Bankruptcy Court for the Eastern District of Tennessee, the district in which he has lived since at least 2008, as evidenced in online records of political contributions. He filed solely for himself. His wife, former Nashville Circuit Court Judge Muriel Robinson, did not file in bankruptcy court.

Simpkins listed assets valued at $1.675 million before deducting exemptions of $997,609.50, mostly for two individual retirement accounts. The biggest creditor was the IRS, which he listed as being owed nearly $12.5 million in taxes, penalties and interest. The IRS claimed in documents it later filed with the bankruptcy court that it was owed more than $13 million.

Avoiding IRS, tax debt

For most people, that amount of debt would be insurmountable. The purpose of bankruptcy is to allow debtors to get out from under crippling debt and to make a fresh start.

The most frequent reasons for consumer bankruptcy filings are catastrophic medical debt, joblessness and divorce, says Howard, the Virginia bankruptcy law professor. Owing taxes is not uncommon, indeed most consumer debtors also owe taxes, she says. They usually file bankruptcy when they have hit bottom financially after several months of living hand-to-mouth.

In a Chapter 7 case, the bankruptcy trustee takes the debtor’s assets, holds a meeting of creditors, investigates the assets and determines if there’s any value that can be sold for the benefit of the creditors, Nashville bankruptcy attorney Bill Norton explains, noting he is speaking generally about bankruptcy without knowing the particulars of the Simpkins case.

For example, in the case of a house that’s mortgaged, he says, the trustee will look at whether there’s any equity in the house. If the debtor owes more on the mortgage than the house is worth, the trustee will abandon the property – give it back to the debtor along with the obligation to pay the mortgage.

As a general rule, taxes more than three years old are dischargeable in bankruptcy, Norton says. There are other requirements, as well.

A 1982 photograph of Nashville Banner co-owners Brownlee Currey and Irby Simpkins. They had purchased the paper three years earlier with John Jay Hooker.

-- Nashville Public Library, Special Collections, Photograph By Don Foster

According to Florida tax attorney Heinkel, to be dischargeable, the returns must also have been filed at least two years before the bankruptcy filing and any later tax assessment must have preceded the bankruptcy filing by at least 240 days. And fraud will preclude a tax debt from being discharged in bankruptcy, attorneys say.

University of Tennessee law professor George Kuney explained the reasons for allowing some tax debt to be discharged:

“Congress recognized that some people get in over their heads, and if the government has had the statutory amount of time to slap liens on your property and take other actions to collect the taxes and has not collected, then taxpayers ought to be able to discharge the tax debt,” Kuney says.

Heinkel says the IRS can take almost everything a taxpayer owns in order to satisfy a tax debt, even assets that are otherwise exempt from the claims of creditors, such as IRAs and equity in a homestead. But if the tax debt has satisfied all the requirements for dischargeability, the IRS is limited to the assets the taxpayer had at the time he filed for bankruptcy, and only if the IRS has filed a lien before the bankruptcy filing.

In cases that are audited, whether they go to Tax Court or not, Heinkel says, there frequently is a situation where the three-year and two-year rules are met, and the additional assessment coming from the audit will not be dischargeable until after the assessment has been made and 240 days have passed.

Because the IRS can’t file a lien for that later assessment until after the assessment is made, this often presents a great opportunity for bankruptcy planning, Heinkel says.

Many of his clients will wait for the assessment to be made and file bankruptcy on the 241st day after the assessment. If the IRS has not filed a federal tax lien by that date, and Heinkel says the IRS rarely does, then the debtor is allowed to keep “exempt” assets that would have been lost otherwise, such as IRAs.

How tax laws applied to Simpkins

In Simpkins’ case, all back income taxes had been assessed on or before March 12, 2012. He filed his Chapter 7 petition on Nov. 9, 2012, 242 days later.

Simpkins’ assets that could potentially be liquidated in bankruptcy to pay debts included non-real estate interests in several businesses – more on that later – and in real estate. The real estate consisted of the Shelbyville home he shares with his wife and a minority interest in commercial real estate related to the Nashville Banner.

He and Robinson own their home in Shelbyville as tenants by the entireties. Legally, that means he and his wife both own all of the house, rather than each spouse owning half. Generally, creditors other than the IRS can’t touch either spouse’s interest in property owned as tenants by the entireties while the other spouse is living.

There also was a mortgage on the home that exceeded the value Simpkins declared for his interest in it.

For all intents and purposes, there was no value for creditors in the home, which Simpkins kept along with the mortgage debt.

Simpkins also had a partial interest in real estate listed as “Nashville Banner Properties (Some properties 50 percent ownership interest and some 30 percent ownership interest) subject to $10.00 per year lease that expires 2049.”

According to the schedule of real property assets Simpkins filed in bankruptcy court, the Nashville Banner Properties had a value of $1 offset by a secured claim of $1. Bankruptcy attorney Norton said debtors will sometimes assign a value of a dollar to property if they’re unsure of the value or if they believe the value is nominal.

Simpkins testified under oath about his assets in the meeting of creditors, held in January 2013 with his attorney and the bankruptcy trustee, attorney Trudy Edwards of Winchester, present. No creditors attended.

Edwards has declined to comment for this article, saying only that the bankruptcy court can sell only what a debtor owns in a property and referring this reporter to publicly available online bankruptcy court records.

Creditors meetings are open to the public, and a recording of the 17-minute hearing was available through the federal court’s U.S. Trustee’s office. In the hearing Edwards noted she had received “quite a bit” of material via e-mail the previous day. She asked specifically about the Nashville Banner properties.

“I realize they may not be of much value because of the lease,” she said, “but I would like to see a list of the Banner properties and that lease agreement.”

“I’ve been diligently trying to locate that lease agreement,” Simpkins replied. “My attorney on that transaction has not been able to locate it, either. The last resort is the other party on the lease, who is Gannett, that owns the Tennessean.”

The $10-a-year lease could not be found in the bankruptcy records available to the public online on PACER.

A search for the lease in property records with the Davidson County Register of Deeds was unsuccessful.

Ownership of 1100 Broadway

The list of Banner properties Simpkins gave the bankruptcy court includes 16 tracts in and around 1100 Broadway, the home of the Banner and Tennessean since 1938.

Simpkins and his current wife, former Nashville Circuit Court Judge Muriel Robinson, now live in rural Bedford County on a farm south of Shelbyville.

-- Lyle Graves | The Ledger

When the Banner ceased operations in 1998, the afternoon paper’s two owners held partial interests in the 16 tracts, which cover 4.4 acres in all. Some tracts front on Broadway’s 1100 block and others front on Porter Street.

Two tracts are along 12th Avenue North across the street from the main Tennessean building and are used for parking. Others range along 11th Avenue North, a street that has seen a huge makeover from the city to create another walkable Gulch neighborhood.

(Gannett owns additional nearby property separate and apart from what it accumulated over the years with the Banner.)

Documentation filed with the bankruptcy court in 2012 gave the 2008 appraised tax value of the 16 properties as $4.1 million for the land alone.

The 2013 tax appraisals exceeded $8 million, according to online information from the Davidson County Property Assessor’s Office.

The goal of appraisals is to approximate the fair market value of the property, or the most probable price the property would sell for on the open market under usual circumstances, as the web site states.

Establishing a value for property is an art, especially in the context of a bankruptcy case.

Kuney, the University of Tennessee bankruptcy professor, and Nashville attorney Norton say the bankruptcy court system relies on the market to determine the value of properties sold through bankruptcy.

The theory, Kuney says, is to give notice of the opportunity to purchase property, and then interested buyers will emerge and bid on it.

“Whatever the highest and best bid is constitutes the market value of the property. (The bankruptcy trustee) will usually put newspaper ads in or maybe contact online asset-listing services.”

“You wouldn’t have much knowledge (that property was for sale) other than the notice from the bankruptcy court that is given to creditors,” Norton says. “The Trustee may post it somewhere or advertise, but in general, (the sale of property is) kind of word-of-mouth from the creditors. Typically, the word gets around and people show up.”

“A lot of good value can be found in bankruptcy cases because you need to look closely (at the properties to unlock their underlying value) but a lot of people are unwilling to do that,” Kuney says.

“It’s like trying to find a deal if you’re buying a car. You don’t buy it new – you go to a lot of used car lots to find a gem, the car that’s been driven to church every Sunday by the proverbial little old lady. It takes a lot of work so most people don’t do it.”

The fact that the Nashville Banner properties are subject to a lease that’s good until 2049 limits the value of the property because it’s tied up until that time, bankruptcy lawyers say.

In the 2013 creditors meeting, Simpkins told the bankruptcy trustee about a piece of real estate that had been part of the Nashville Banner properties but was sold some years ago. “…We have sold one of those properties, we being my partner in the newspaper, Brownlee Currey, and myself and Gannett. … All we have an interest in is the land.” (Records with the Davidson County Register of Deeds list Currey as a part owner of the 30 percent to 50 percent interest in the Banner properties. Currey declined to comment for this article.)

Simpkins said he and Currey received about $150,000 each from the sale, representing half of the sale proceeds after the appraised value of the building was subtracted out from the total value. Bankruptcy records indicate the property is at 1126 McGavock Street.

California buyer steps in

In May of 2014, notice went out from the Bankruptcy Court that Simpkins’ interest in the Nashville Banner properties would be sold to an entity called Liquidity Capital Group for $5,000 unless someone filed an objection in court.

The filing stated Simpkins’ interest in the property was supported by a “Sale Agreement dated 29 December 1986 and Ground lease of even date, along with a list of 16 tracts attached hereto as Exhibit B.” The list of tracts was attached in the online PACER record, but the 1986 sale agreement and ground lease were not. Efforts to find those documents have been unsuccessful.

Notice of the proposed sale was given to Simpkins’ creditors. No address was given for Liquidity Capital Group. Efforts to talk with Liquidity Capital Group were unsuccessful.

As it turns out, Liquidity Capital Group didn’t buy the Nashville Banner properties because someone else outbid it. Simpkins’ interest in the properties sold for $35,000 on Oct. 31, 2014 to Partnership Liquidity Investors LLC, in care of Jerome Fink of Huntington Beach, Calif.

Fink, reached by telephone, confirmed Partnership Liquidity Investors had purchased fractional interests of between 30 and 50 percent in the Nashville Banner properties, which he said were purchased as a long-term investment.

Simpkins’ interests in several limited liability companies were listed on the bankruptcy records as personal property. These included Butterfly Hill Farms, LLC, located in Shelbyville and co-owned with Robinson as tenants by the entireties and with a listed value of $75,000 before deducting exemptions or secured claims.

He also listed a 97 percent interest in Garnet Rock Investments LLC, value unknown, and in two other LLCs, MTM Development, IV, LLC and MTM, II, LLC, both with unknown value. MTM Development IV was owned as tenants by the entireties.

Simpkins’ daughter and son-in-law owned the minority interest in Garnet Rock Investments LLC. It initially was to be sold to Liquidity Capital Group for $70,000, according to a notice of sale filed in the bankruptcy case.

Eventually, Simpkins’ daughter and son-in-law bought out Simpkins’ interest in Garnet Rock for $180,000. That and the $35,000 for the Nashville Banner properties represent all of the money collected for payment of creditors in bankruptcy court.

Of that amount, $36,461.86 in administrative fees and charges were paid out, including payments to the bankruptcy trustee, the trustee’s lawyer and to Liquidity Capital Group as break-up fees after it was outbid on the Banner properties and Garnet Rock.

Under an agreed order with the IRS that was reached in a separate case in the Bankruptcy Court, Simpkins’ tax liabilities for 1996 through 1999 were subject to discharge in bankruptcy.

The IRS was allowed to keep in effect any federal tax liens on Simpkins’ property that had been properly filed. The agreed order said that any such liens would attach to exempt property. IRS spokespersons have declined to comment on this case.

It’s unclear from available records whether the IRS has any such lien.

The IRS’ proof of claim in the bankruptcy case was unsecured, an indication it had no tax lien on Simpkins’ property.

An online search for tax liens in Bedford County and a telephone call to the Bedford County Register of Deeds, where a lien would most likely be filed, revealed no liens.

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