Some of us just have jobs. Others have callings. If you feel you have a calling, it can be very difficult to sway you from your vocation. Sometimes not even a permanent federal court injunction will do the trick.
A permanent injunction apparently didn’t stop an Iowan whose calling appears to be to spread the gospel of ESOP. John L. Henss was already promoting his vision of Employee Stock Ownership Plans when I moved to Iowa as a young CPA in 1985. By a remarkable coincidence, Iowa had more than its share of tax litigation involving flawed ESOPs over the years (see, for example, here, here and here).
One of the most remarkable cases was the 1992 case of Martin v. Feilen (CA-8, 965 F.2d 660), involving alleged self-dealing and fiduciary breaches among the trustees and administrators of Feilen Meats, an Iowa packer. Among the defendants was John L. Henss.
Judge Loken authored the decision of the Eighth Circuit on the case, a decision that went badly for Mr. Henss (my emphasis):
Henss was the dominant decision-maker for FMC and the ESOP with respect to all or nearly all the transactions discussed in this opinion. He also holds himself out as an ERISA expert who has structured and provided other services and advice to hundreds of ESOPs. In addition to engaging in the actionable self-dealing we have described, Henss’s trial testimony displayed an appalling insensitivity to the proper role of ESOPs and ESOP fiduciaries. For example, Henss stated repeatedly his view that ESOP fiduciaries are exempt from ERISA’s “prudent man” rule when investing plan assets in an employer’s stock or property.
To summarize, we affirm the district court’s judgment that Henss and Stephen Thielking, and their personal corporations, breached their ERISA fiduciary duties in causing the ESOP to engage in the above-described Transactions Subject to ERISA, and we affirm the district court’s permanent injunction against Stephen Thielking and Stephen K. Thielking, C.P.A., P.C. We modify the permanent injunction against John Henss and John L. Henss C.P.A., P.C., to further enjoin them from acting as a service provider to any ERISA plan.
So that ended Mr. Henss’ career in the ESOP field, right? Never underestimate the tenacity of a man with a calling. His name reappeared in another ESOP case yesterday in Tax Court. It was a remarkable case, actually, in that a partnership had an Employee Stock Ownership Plan. But when you have a calling, a lack of a corporation with actual stock won’t stand between you and an ESOP. But mere tenacity isn’t enough, according to Judge Kerrigan (my emphasis):
Respondent contends that because K.H. Co. was a partnership for tax purposes, it did not have qualifying employer securities. The parties do not dispute that K.H. Co. was a partnership at all relevant times. Indeed, K.H. Co. admits that it filed Forms 1065, U.S. Return of Partnership Income, for tax years ended September 30, 1995 through 2004. Because K.H. Co. was a partnership for tax purposes and did not have any stock, it did not have any qualifying employer securities for purposes of sections 409(l) and 4975(e)(7) and (8) in which the plan could invest. Therefore, petitioner failed to operate as an ESOP pursuant to its terms when K.H. Co. became its employer, sponsor, and administrator.
But aside from the obvious one, what problems might this ESOP have? Perhaps the required ESOP stock appraisal, performed for 2000, 2001 and 2002 by none other than John L. Henss. Apparently “permanent” had already worn off by then. From the Tax Court:
John L. Henss was chosen to appraise K.H. Co. The administrative record includes appraisals and appraisal summaries for only 2000, 2001, and 2002. Written on “JLH” letterhead, the cover letter of each appraisal states: “At your request, we have prepared an appraisal valuation of KH Company, L.L.C.” The cover letters refer to the “appraised value of common stock of KH Company, L.L.C.” The cover letters are all dated, but none of them are signed.
Mr. Henss’ qualifications are not described in the appraisals. The appraisal summaries state merely: “The undersigned holds himself out to be an appraiser. The undersigned is an accountant who is familiar with the assets being appraised.” Mr. Henss did not sign or date the appraisals or the appraisal summaries.
Petitioner claims that Mr. Henss has degrees in English, accounting, and law. Petitioner further claims that Mr. Henss “has been preparing appraisals of stock for employee stock ownership plans for many clients for several years” and that he is the author of a book on ESOPs. Petitioner also contends that Mr. Henss was in all other respects a person who was “independent” as set forth in the statute, the regulations, and the Commissioner’s announcements on the subject.
Section 1.170A-13(c)(5)(i)(A), Income Tax Regs., provides that a qualified appraiser is an individual who includes on the appraisal summary a declaration that he or she holds himself or herself out to the public as an appraiser or performs appraisals regularly. Because there is no signature below the statement on the appraisal summaries that the “undersigned holds himself out to be an appraiser”, the plan failed to meet this requirement.
Not to mention that he had been enjoined from providing services to ERISA plans — a term that would seem to cover appraisal services.
Whatever the nature of his calling, things haven’t universally gone well in court for clients who have used Mr. Henss. Perhaps when selecting an ESOP service provider, one might well take federal court injunctions into consideration.
Martin Sullivan, Can Dynamic Scoring Save Tax Reform? Don’t Count on It
Jeremy Scott, How to Pay for Camp’s Tax Reform Plan
Clint Stretch, The Tax Reform Blame Game
Renu Zaretsky, House GOP Tax Plan Hits This Week; IRS Getting Worked Over But It’s Still Working. This is a new daily news roundup at TaxVox.
Tax Justice Blog, State Tax Breaks Pile Up. Government by special favor always has its fans.
William Perez, Reporting Unemployment Compensation Benefits
Kay Bell, Most taxpayers support tax preparer competency standards. I find this a meaningless result, a question posed to people who have given approximately no thought to the issue and who have more developed views of Miley Cyrus than John Koskinen.
Liz Malm, Mississippi Lawmakers Consider Firearm Sales Tax Holiday (Tax Policy Blog). Even for a good cause, sales tax holidays are a bad idea.
TaxProf, The IRS Scandal, Day 292
Is there nothing the tax law can’t do? Meanwhile in Canada, You Get a Tax Credit For Not Stinking the Joint Up (Going Concern)