Judge rules EMC founder concocted 'sham' $62M tax-shelter
Tax on $327 million in gains from EMC stock at center of decade-long legal battle
By Paul McNamara on Wed, 05/19/10 - 12:24pm.It's difficult to recall a judge using more damning language in a white-collar case, so consider the depth of premeditated wrongdoing necessary to elicit these words from U.S. District Judge Dennis Saylor in describing what he found to be an illegal $62-million tax shelter erected by the late founder of EMC, Richard Egan, in conjunction with family members and advisers.
"In short, the Fidelity High Tech and Fidelity International transactions were complete shams, without any economic substance of any kind. ...
"None of the participants in these complex transactions believed that they were real business transactions, with any purpose other than tax avoidance. Indeed, it is highly doubtful that any participant believed, even for a minute, that the transactions would withstand legal scrutiny if discovered. ...
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"No one with the slightest understanding of the tax laws could reasonably believe that $160 million in basis could be created out of thin air, or that $160 million in income could be made to vanish in a puff of smoke," he wrote. "... the transactions at issue were 'real' only in the sense that a performance by actors on stage is 'real. No one watching 'Macbeth' believes that they are witnessing the murder of a Scottish king, and the actors do not believe it either."
Nevertheless, Egan's son Michael continues to insist that it is his family that is the victim here, telling the Boston Globe of his disappointment in seeing press reports describe his father as a tax cheat: "We paid the tax. This was essentially a request to get our money back.''
They paid the tax only after getting caught, and those press reports might have something to do with the fact that the IRS, and now Judge Saylor, are screaming at the top of their lungs that Richard Egan was a tax cheat.
A Business Week/Bloomberg report sketches the outlines of the outlawed tax shelter Egan used, which was known as "Son of Boss."
The Internal Revenue Service outlawed the Son of Boss transaction in August 2000, something the Egans and their advisers were aware of, Saylor wrote. The transaction was widely used in the late 1990s; in 2004, about 1,500 people settled with the IRS in exchange for reduced penalties, paying more than $6 billion.
The shelter "involved creating transactions with offsetting positions, which by itself meant that there was no economic risk," said Howard Medwed, a partner in the Boston law firm Burns & Levinson LLP who wasn't involved in the case.
The Egans didn't settle. They deposited $62.1 million with the IRS and sued the government in 2005 to get the money back. Saylor wrote that a "significant feature of the scheme" was the reliance on legal opinions provided by four law firms that the transaction was legitimate.
This story in the MetroWest Daily News notes that Egan did much for the town of Hopkinton, Mass., where he lived and EMC is headquartered. I live in Hopkinton myself and have seen first-hand the good corporate citizenship of the company; my children have spent many an hour playing at EMC Park.
Don't blame me for wondering, though, if he paid his fair share of property taxes.
Eagan died last August of a self-inflicted gunshot wound. He was battling cancer at the time.
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