In February of 2015, in a SumOp, I wrote about the terrible case of Specht v. United States out of the Southern District of Ohio, where the Court upheld delinquency penalties against an estate for failure to timely file and pay estate tax. This case was a dumpster fire on a train wreck in terms of the facts for the executor in Specht, but the Sixth Circuit affirmed the district court upholding the penalties, which is not unexpected (and I’m sure they didn’t love doing it). The case does not break new ground, but it is a good example of how difficult arguing the reasonable cause exception to the delinquency penalties can be if the delinquency was based on relying on an attorney or accountant to file.
To the unfortunate facts. Ms. Specht was the cousin of Virginia Escher, who was worth about $12.5MM on her death (interesting side note, she and her husband apparently were frugal, and accumulated the wealth from her husband working at UPS — in the late 90’s when UPS issued its IPO, there were all kinds of rumors and stories about all the employees becoming millionaires, and many mangers did get millions – Perhaps Virginia’s hubby was one such lucky employee). A few months prior to her death, Virginia had her lawyer, Mary Backsman, draft a new will naming Ms. Specht her executor. Attorney Backsman had over fifty years of estate planning experience, and was well regarded. Ms. Specht had a high school degree but never went to college, was in her 70s, had never served as an executor, had never been in a lawyer’s office, had never dealt with stock, was not business savvy, and did not even own stock. Not an ideal executor for a large estate comprised of a large holding of UPS stock, but with competent counsel she should have been able to complete the administration…And therein lies the rub.
Attorney Backsman may have been a phenomenal lawyer for decades, but she was quite unfortunately suffering from brain cancer, which she was not disclosing to clients, and her competency was deteriorating. Not knowing this, Ms. Specht hired her to assist with the administration. Attorney Backsman informed Ms. Specht that $6MM in tax would be due nine months from the date of death, and UPS stock would need to be liquidated. Attorney Backsman also suggested her firm could front the $6MM in tax, and be reimbursed after the fact (what?!?! Was that the cancer, or did her firm really do that? My firm is not currently floating $6MM for clients). Specht signed the Application for Authority to Administer Estate and a Fiduciary’s Acceptance, but Attorney Backsman did not explain either or her obligations.
All parties agree that Ms. Specht relied very heavily on Attorney Backsman to handle the administration, which largely resulted in Ms. Specht calling Attorney Backsman to get updates on the statute. Ms. Specht asked about the returns repeatedly, and was told that an extension had been obtained for filing the return. This was not true and the return was not filed nor were the taxes paid. The Sixth Circuit highlighted the fact that Specht had received multiple notices that probate deadlines were missed, and that she relied on Attorney Backsman’s statement that it was being handled and extension were obtained. The following year, Ms. Specht was contacted by a family friend who also used Backsman, and was told that Attorney Backsman was incompetent. Ms. Specht went to see Attorney Backsman, and again accepted statements that the administration was moving forward and extensions were obtained. She also signed “a blank paper”, which the attorney indicated would give her authority to sell the UPS stock on behalf of the estate (the attorney later claimed that paper was sent to UPS, but it never was). From middle of August 2010 to October of 2010, the wheels really started to fall off. Ms. Specht received multiple notices from the Ohio taxing authority indicating the return was late. Various family members called and begged Ms. Specht to fire the lawyer due to incompetence, and Ms. Specht found out that UPS had not been contacted. At that point, she fired Attorney Backsman.
Within a few months of hiring new counsel, the UPS stock was sold, the federal estate tax return was filed with payment of the tax and interest. The Service imposed penalties, which the estate subsequently paid. Somewhat interestingly, the Ohio taxing authority refunded the penalties imposed due to “hardship caused by Backsman’s representation.” PA hardly ever imposes penalties on death tax returns, and I have rarely seen it on state death tax returns, so I am not that surprised.
Big Brother, however, decided it needed to refill the coffers of the Holding Company, and imposed substantial penalties. The IRS imposed $1,189,261 of penalties (and interest) for failure to file and failure to pay tax under Sections 6651(a)(1) and (2). As the Court noted, quoting US v. Boyle, the penalties are mandatory unless the taxpayer had reasonable case; the taxpayer “bears the heavy burden of proving both 1) that the failure did not result from ‘willful neglect’ and 2) that the failure was ‘due to reasonable cause’.” 469 US 241 (1985). As Keith noted in his recent post on Kimdun, Inc., if the Court is citing Boyle heavily in a reasonable cause case, your client is probably in trouble.
In Specht, the taxpayer was clearly not sophisticated, made reasonable attempts to comply, and made the reasonable decision to hire the attorney who prepared the estate plan, was very well respected, and had decades of experience…but, under Boyle, that is not really applicable to reasonable cause in this instance.
In Boyle, the Supremes dropped what they believed to be a bright line rule, which sometimes causes reasonable people to fall outside of the reasonable cause exception. In Boyle, the Court stated, “the time has come for a rule with as ‘bright’ a line as can be drawn…[and] Congress has placed the burden of prompt filing on the executor, not on some agent or employee of the executor.” The Court believed this meant that Congress intended to place the burden on the executor to determine the applicable deadline and ensure filing in a timely fashion. Further, “[t]hat the attorney…was expected to attend to the matter does not relieve the [executor] of his duty to comply with the statute.”
The Court looked to its prior holding for guidance, in Vaughn v. United States (also covered here previously). Mo Vaughn, the rotund slugger, had a shady money manager after his retirement who was probably stealing from him and failing to keep his financial affairs and returns in order (if you wanted to argue that Mo was stealing from the Mets the final two years of his career…). The Sixth Circuit held there that “Vaughn’s statutory duty is non-delegable and is not excused because of the felonious actions of his financial agents.” The ultimate tax insult to financial injury. The Court concluded by essentially stating “reasonable causes” are only something beyond the possible control and oversight of the taxpayer, and taxpayers should know the due date and make sure it is followed.
The Court concluded that Specht had agreed to be a fiduciary, which has obligations that are serious. The Estate could not show that she met the heavy burden of showing reasonable cause in failing to file the returns before the applicable deadline.
My conclusion the first go around was as follows:
I’ve shared my frustration with this line of cases repeatedly in the past, but I do somewhat understand why the rule is crafted in this matter. I would be interested to know how the malpractice case panned out. The coverage may have a maximum payout amount, and if there were a bunch of these cases, the various clients could be dividing up a limited pie. In theory, the executor could be held liable to the beneficiaries for anything not recouped. Any result where the executor ends up responsible seem completely inequitable to me.
The estate did sue Attorney Backsman, and that case settled, although the amount is unknown. Some amount may have been recouped, but, as I noted above, Attorney Backsman, probably had a number of claims brought against her, and it is possible that the malpractice policy limited the total payout.
My position on Boyle and reasonable cause remains the same. I understand why the bright line is in place, as it would be too easy for executors to simply blame counsel for the mistake. Serving as executor, however, is not a common occurrence, and, with the current estate tax thresholds, having to file a federal estate tax return is fairly uncommon. For a sophisticated individual, it is possible to determine there is a nine month deadline. In my view, the IRS is too aggressive in applying this rule to these type of cases. For instance, the Service extended it to substantive advice as to when taxes had to be paid under complicated Code Sections in Thouron from the Third Circuit. It is also drastically out of line with how lawyers and clients interact in this arena. Every single one of my clients relies on me completely to ensure proper and timely filing. They look to me, often bewildered, as to when the return must be filed, what the extension can be for, when the tax has to be paid and when that can be extended. And, given how few of these returns are filed each year, it seems unlikely that John Q. Public is going to realize they cannot rely on me as protection from penalties (query if such reliance is a valid defense in a breach of fiduciary liability case).
Boyle modifies a subjective “reasonable cause” standard, and turns it into an objective line in the case where an executor relies on a preparer to timely file. The statute, which had objective deadlines, included an exception, which is no longer allowed for receiving advice on a deadline in all deadlines. Interestingly, the Service also recognized how colossally messed up the Code is, and that people are going to miss deadlines. You get a free pass on the income tax side with the first time abate exception. Income taxes are filed by essentially everyone, every single year. Most people will never file an estate tax return.
I certainly don’t have a better solution at this point, which diminishes the usefulness of this post, but I always feel bad for the executors. I understand, however, why the cases are decided as they are under Boyle by the lower court judges. If possible when bringing one of these cases, I would try to show the missed deadline was tied to substantive advice regarding the due date. A showing that there was a general understanding, issues were raised, and incorrect advice was given.
There is one other aspect of the case that is worth noting, which was the failed argument regarding Mrs. Specht’s ability or capacity to do the job of executor. The Sixth Circuit noted that Boyle left open the possibility that an executor’s ability level would potentially impact the reasonableness of the late filing of the return. The Court specifically highlighted the concurrence by Justice Brennan as stating mental health or diminished capacity as reasons that could get around the bright line rule. The Court, however, also cited to the rule that a great majority of people can determine the deadline and ensure compliance, which it found true of Mrs. Specht. Mrs. Specht, although unfamiliar with the rules, did not suffer from a disability that would have caused her to miss the deadline. This could be an avenue in future cases, with the right fact pattern, to claim reasonable cause when someone has relied on a preparer to ensure timely filing.