15‐3335‐ag Marvel Entmʹt, LLC v. Commʹr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2016

(Argued: August 31, 2016 Decided: September 7, 2016)

Docket No. 15‐3335‐ag

MARVEL ENTERTAINMENT, LLC, as Successor to Marvel Entertainment, Inc., F.K.A. Marvel Enterprises, Inc. and as agent for members of Marvel Enterprises, Inc. and Subsidiaries Group,

Petitioner‐Appellant,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent‐Appellee.

ON APPEAL FROM THE UNITED STATES TAX COURT

Before: WINTER, CHIN, and DRONEY, Circuit Judges. ______

Appeal from an opinion and an order and decision of the United

States Tax Court (Ruwe, J.) granting summary judgment for the Commissioner of Internal Revenue and finding petitioner‐appellant Marvel Entertainment, LLC

liable for federal income tax deficiencies for the taxable years 2003 and 2004. The

Tax Court applied a ʺsingle entityʺ approach to reduce the consolidated net

operating loss of Marvel Entertainment, LLCʹs consolidated group by its

previously excluded cancellation of debt income.

AFFIRMED. ______

B. JOHN WILLIAMS, JR. (David W. Foster, Nathan P. Wacker, Sonja Schiller, on the brief), Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C. and Chicago, Illinois, for Petitioner‐Appellant.

DEBORAH K. SNYDER (Gilbert S. Rothenberg, Thomas J. Clark, on the brief), Tax Division, Department of Justice, for Caroline D. Ciraolo, Acting Assistant Attorney General, and Diana L. Erbsen, Deputy Assistant Attorney General, Washington D.C., for Respondent‐Appellee.

PER CURIAM:

This appeal challenges an opinion and an order and decision of the

United States Tax Court entered July 21, 2015 granting summary judgment for

the Commissioner of Internal Revenue. The sole issue before the Tax Court, and

‐ 2 ‐ before us on appeal, is whether petitioner‐appellant Marvel Entertainment, LLCʹs

consolidated group must reduce its consolidated net operating loss (ʺCNOLʺ)

under Internal Revenue Code § 108(b)(2)(A) by the total amount of the groupʹs

previously excluded cancellation of indebtedness income under a ʺsingle entityʺ

approach as opposed to determining the amount of CNOL apportionable to each

member and applying § 108(b)(2)(A) on a member‐by‐member basis. The Tax

Court applied a ʺsingle entityʺ approach to reduce the CNOL, finding

deficiencies in income tax due for the taxable years 2003 and 2004 in the amounts

of $2,144,756 and $14,453,653, respectively.

Applying de novo review, Scheidelman v. Commʹr,

(2d Cir. 2012), we affirm for substantially the reasons stated by the Tax Court in

its complete and well‐reasoned opinion,

(2015).

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