U.S. Court of Appeals for the Eighth Circuit, 1991 Court affirmed denial of investment tax credit where noncorporate lessor failed to prove realistic contemplation that lease would be less than fifty percent of equipment's useful life.

Court affirmed denial of investment tax credit where noncorporate lessor failed to prove realistic contemplation that lease would be less than fifty percent of equipment's useful life.

Richard J. Borchers Jane E. Borchers v. Commissioner of Internal Revenue
U.S. Court of Appeals for the Eighth Circuit · Decided August 23, 1991 · Fagg, Henley, Magill
943 F.2d 22; 68 A.F.T.R.2d (RIA) 5439; 1991 U.S. App. LEXIS 19499; 1991 WL 161075 (Federal Reporter, Second Series)

Outcome: Affirmed for appellee.

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Counsel

Bernie H. Beaver, Minneapolis, Minn., for appellants., David A. Hubbert, argued, Washington, D.C. (Gary R. Allen and Richard Farber, on the brief), for appellee.

Richard J. Borchers Jane E. Borchers v. Commissioner of Internal Revenue

What happened

The facts of the case, in plain language.

The leases' written terms were twelve months, and the computer equipment's useful life was six years.

The Borcherses controlled Decision Systems, Inc., and Richard leased computer equipment only to Decision Systems in 1982.

In 1983, Richard again leased to Decision Systems all the equipment purchased and leased to the corporation in 1982.

Richard had leased other computer equipment to Decision Systems in 1981, renewed all these leases in 1982, and renewed some of the leases again in 1983.

What the court decided

Richard and Jane Borchers appealed a tax court decision denying them an investment tax credit on computer equipment Richard leased to Decision Systems, Inc., their wholly-owned corporation, in 1982. This was the second appeal of the same case—the Eighth Circuit had previously vacated and remanded for lack of adequate tax court analysis. On remand, the tax court disallowed the credit. The court affirmed, holding that under the realistic contemplation test, noncorporate lessors seeking an investment tax credit must prove they realistically contemplated the lease would cover less than fifty percent of the equipment's useful life. Although the written lease terms were twelve months (less than fifty percent of the six-year useful life), the tax court found the Borcherses' pattern of repeated leasing to their controlled corporation, with multiple renewals, demonstrated they did not realistically contemplate a short-term lease.

  1. Under 26 U.S.C. § 46(e)(3)(B), a noncorporate lessor seeking an investment tax credit must prove the leased property is used for less than 50% of its useful life, determined not by written lease terms but by the 'realistic contemplation' of the parties at the time the property is first put into service, examining all surrounding facts and circumstances. (*23)
  2. A noncorporate lessor claiming an investment tax credit under § 46(e)(3)(B) bears the burden of proving the parties realistically contemplated the lease would cover less than half of the property's useful life; a pattern of renewals of leases to a controlled corporation defeats that showing. (*23)
  3. A lower court on remand is free to revisit any issue—and may change its prior result—on any question the appellate court did not expressly or impliedly decide in vacating the earlier decision. (*23)

How the court reached its decision

The court's reasoning, step by step.

Whether the tax court clearly erred in finding, under the realistic contemplation test, that the Borcherses failed to prove the parties realistically contemplated leases covering less than 50% of the equipment's useful life. Although the written lease terms (twelve months) were less than 50% of the equipment's six-year useful life, the Borcherses controlled Decision Systems; Richard leased equipment exclusively to Decision Systems in 1982; in 1983 Richard again leased to Decision Systems all equipment purchased and leased in 1982; Richard had leased other equipment to Decision Systems in 1981 and renewed those leases in 1982 and again (some) in 1983—a pattern of repeated renewals to a controlled entity inconsistent with a realistic contemplation of short-term leasing. The court found no clear error in the tax court's determination that the Borcherses failed to prove realistic contemplation that the leases would cover less than half of the equipment's useful life, and affirmed the denial of the investment tax credit.

Whether the tax court on remand was limited to explaining its original decision favorable to the taxpayers, or was free to change the result and disallow the investment tax credit. The prior Eighth Circuit decision vacated solely because the tax court's failure to provide analysis made review impossible; it did not decide whether the Borcherses were entitled to the credit, nor did it confine the tax court to explaining its first decision. Because the prior remand left the merits undecided, the tax court was free on remand to reverse its result and disallow the investment tax credit.

Key quotes from the opinion

Notable passages from the opinion, in the court's own words.

“Under this test, written lease terms are not dispositive.”
Realistic contemplation test—written terms not dispositive — *23
“The Borcherses had the burden to prove they realistically contemplated the leases would cover less than half of the equipment's useful life.”
Burden of proof on taxpayer claiming investment tax credit — *23
“the record reflects the Borcherses controlled Decision Systems, Richard leased only to Decision Systems in 1982, and in 1983, Richard again leased to Decision Systems all the equipment purchased and leased to the corporation in 1982.”
Key facts demonstrating control and leasing pattern — *23
“supports its conclusion that the Borcherses failed to prove the parties realistically contemplated the terms of the leases would be less than half of the equipment's useful life”
Court's conclusion based on realistic contemplation test — *24

Cases the court relied on

Earlier decisions the court cited as authority for its ruling.

  • Connor v. Commissioner (847 F.2d 985 (1st Cir. 1988)) — First Circuit decision establishing that written lease terms are not dispositive under the realistic contemplation test, that all surrounding facts and circumstances are examined, that the taxpayer bears the burden of proving realistic contemplation, and that the clearly erroneous standard governs appellate review—all rules the court directly adopted and applied.
  • Owen v. Commissioner (881 F.2d 832 (9th Cir. 1989)) — Ninth Circuit decision supporting the realistic contemplation test's focus on the parties' contemplation at the time the property is first put into service.
  • McEachron v. Commissioner (873 F.2d 176 (8th Cir. 1988)) — Prior Eighth Circuit decision adopting the realistic contemplation test in the context of a challenged lease containing no definite term, establishing circuit precedent for application of the test.
  • Borchers v. Commissioner (889 F.2d 790 (8th Cir. 1989)) — Prior Eighth Circuit decision in this same case vacating the tax court's initial grant of the investment tax credit because the absence of any analysis made appellate review impossible, providing the procedural basis for the remand at issue.
  • Newball v. Offshore Logistics Int'l (803 F.2d 821 (5th Cir. 1986)) — Fifth Circuit authority for the mandate rule principle that a lower court on remand is free to address any issue not expressly or impliedly decided by the appellate court, used to sustain the tax court's authority to change its result on remand.

Cases that cite this one

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Full opinion

The complete text of the court's opinion as published.

Opinion

*23 FAGG, Circuit Judge.

Richard J. Borchers and Jane E. Borch-ers appeal the tax court’s decision denying them an investment tax credit on computer equipment Richard leased to the Borchers-es’ wholly-owned corporation, Decision Systems, Inc., in 1982. See 26 U.S.C. § 46(e)(3)(B) (1982) (amended 1988). We affirm.

This is the second time we have had this case before us. Initially the tax court held the Borcherses were entitled to an investment tax credit, Borchers v. Commissioner, 55 T.C.M. (CCH) 1469 (1988), and the Commissioner appealed. We could not effectively review the decision because the tax court’s failure to offer an analysis “[made] it impossible for us to determine the correctness of [its] decision.” Borchers v. Commissioner, 889 F.2d 790, 791 (8th Cir. 1989). Thus, we vacated the tax court’s decision and remanded the case for further proceedings. Id. On remand the tax court engaged in a reasoned analysis changing the result and disallowing the credit. Borchers v. Commissioner, 95 T.C. 82 (1990). The Borcherses now appeal.

The Borcherses argue that after we vacated and remanded the tax court’s first decision, the tax court could only explain, not change, the initial result. We disagree. Although our mandate controls all matters within its scope, a court on remand is free to revisit any issue we did not expressly or impliedly decide. Newball v. Offshore Logistics Int'l, 803 F.2d 821, 826 (5th Cir. 1986); see also Bethea v. Levi Strauss & Co., 916 F.2d 453, 456 (8th Cir. 1990). In our earlier decision, we did not decide whether the Borcherses were entitled to an investment tax credit or confine the tax court to explaining its first decision. Accordingly, the tax court was free to change the result on remand.

We now turn to the merits of the case. A noncorporate lessor of property seeking an investment tax credit under 26 U.S.C. § 46(e)(3)(B) must show the property is leased for less than 50% of its useful life. Here, the leases’ terms are twelve months, and the computer equipment’s useful life is six years. Thus, the leases’ written terms are less than 50% of the equipment’s useful life. In determining the duration of the leases, however, the tax court used the “realistic contemplation” test. 95 T.C. at 88. Under this test, written lease terms are not dispositive. See Connor v. Commissioner, 847 F.2d 985, 988 (1st Cir. 1988). Instead, all the facts and circumstances surrounding the lease are examined, see 95 T.C. at 89, to ascertain the realistic contemplation of the leasing parties when the property is first put into service, Owen v. Commissioner, 881 F.2d 832, 834 (9th Cir. 1989), ce rt. denied, — U.S. -, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990); Connor, 847 F.2d at 989; see also McEachron v. Commissioner, 873 F.2d 176, 177 (8th Cir. 1988) (adopting realistic contemplation test when challenged lease contains no definite term). Because the Borcherses do not challenge the use of this test, we need not consider the test used in McNamara v. Commissioner, 827 F.2d 168, 172 (7th Cir. 1987) (when lease not tax motivated, written term controls unless Commissioner shows lease is a sham).

The Borcherses had the burden to prove they realistically contemplated the leases would cover less than half of the equipment’s useful life. Connor, 847 F.2d at 989. The tax court determined the Borcherses failed to satisfy this burden of persuasion. 95 T.C. at 94. We review the tax court’s determination for clear error. Connor, 847 F.2d at 989.

Reviewing the stipulated record, we find no clear error. Although the Borcherses showed the leases’ written terms were less than 50% of the equipment’s useful life, the record reflects the Borcherses controlled Decision Systems, Richard leased only to Decision Systems in 1982, and in 1983, Richard again leased to Decision Systems all the equipment purchased and leased to the corporation in 1982. See 95 T.C. at 84-87, 90. The record also shows Richard leased other computer equipment to Decision Systems in 1981, renewed all these leases in 1982, and renewed some of the leases again in 1983. See id. at 85-86, 90. We believe the tax *24 court’s analysis of the relevant factors and circumstances, id. at 89, 94, supports its conclusion that the Borcherses failed to prove the parties realistically contemplated the terms of the leases would be less than half of the equipment’s useful life, id. at 94.

Accordingly, we affirm the tax court’s decision.

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