State & Local Tax Bulletin (July 2014)
Ocean Avenue LLC v. County of
Los Angeles and AB 2372
By Matthew F.
a counsel in
the Los Angeles office of Pillsbury Winthrop
Shaw Pittman LLP, and
Becker, a partner in the firm's Palo Alto office.
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On June 3, 2014, the California Court of Appeal for the Second Appellate District affirmed the Superior Court ruling in Ocean Avenue LLC v. County of Los Angeles, holding that even though 100 percent of an entity was sold, a reassessable change in ownership of the entity's real property did not occur because no one person obtained more than 50 percent of the entity. Assembly Bill 2372 would change that result by requiring reassessment of an entity's realty if 90 percent or more of its ownership interests were sold within a three year period, even if no one owner acquired more than 50 percent.
The Ocean Avenue LLC Case
Ocean Avenue LLC acquired the Fairmont Miramar Hotel (Hotel) in Santa Monica in October 1999, and continues to be the record owner of the Hotel to this day. Before September 2006, Ocean Avenue LLC was a wholly owned subsidiary of Hotel Equity Fund VII, L.P. In March 2006, Equity Fund put the Hotel up for auction and MSD Capital LP, a company owned by Michael Dell, the founder and CEO of Dell, Inc., was the winning bidder. The parties initially entered into a purchase and sale agreement for MSD Capital to buy the Hotel from Ocean Avenue LLC, but then canceled it before closing. Instead of Ocean Avenue LLC selling the fee interest in the Hotel realty, Hotel Equity sold 100 percent of the interests in Ocean Avenue LLC as follows:
Counting his ownership interest by multiplying through his respective interests in MSD Portfolio and Hotel Investor, Michael Dell acquired approximately 48 percent of Ocean Avenue. Together, Mr. and Mrs. Dell had acquired roughly 97 percent of Ocean Avenue LLC.
- 49 percent to Susan Dell's (Michael Dell's wife) separate property trust;
- 42.5 percent to MSD Portfolio, L.P.Investments (MSD Portfolio), owned 99.9999 percent by Michael Dell; and
- 8.5 percent to Miramar Hotel Investor, LLC (Hotel Investor), owned roughly 68 percent by Michael Dell and 32 percent by unrelated third parties, through various other entities.
Under the current Proposition 13 (Prop 13) change in ownership rule in R&TC § 64(c)(1), if a limited liability company owns California real property, that property is reassessed if a single person or entity obtains direct or indirect ownership of more than 50 percent of the company capital and profits.
Assessment Appeal and Superior Court
Even though two separate Assessor staff members calculated that neither of the Dells individually obtained over 50 percent of the Ocean Avenue LLC capital and profits, the Assessor concluded that a change in ownership of the Hotel occurred and reassessed the Hotel. Ocean Avenue LLC appealed, and the Assessment Appeals Board agreed that there was a change in ownership because Equity Fund transferred all of its ownership rights to the Hotel by transferring 100 percent of Ocean Avenue LLC. The AAB found that the original purchase and sale agreement that was canceled transferred equitable title when it was entered into. The AAB also concluded that the three prongs of R&TC § 60 were satisfiedthat is, the buyers obtained present beneficial interests in the Hotel that were substantially equal to the fee interestand therefore a change in ownership occurred. In addition, the AAB concluded that Michael Dell controlled more than 50 percent of the capital invested in the purchase, and had a right to the profits including a preferred rate of return, so there was a change in control.
The Superior Court disagreed, holding that no change in ownership occurred because neither of the Dells individually acquired over 50 percent of the Ocean Avenue LLC capital and profits. The Superior Court pointed to State Board of Equalization Property Tax Rule 462.180, Example 7, which states that the interests of a husband and wife are not attributed to each other for purposes of counting the 50 percent threshold. The Superior Court rejected the County's substance over form argument, making clear that transfers of legal entity ownership interests are governed by the legal entity rules in R&TC § 64 and Property Tax Rule 462.180, and not the general rule under R&TC § 60 applicable to direct transfers of real property.
Court of Appeal
The Court of Appeal affirmed the Superior Court. The Court calculated Michael Dell's interest by multiplying through the multiple tiers of ownership at only 48 percent. Thus, Michael Dell did not obtain over 50 percent of the capital or profits of Ocean Avenue LLC, with the Court stating, "The flaw in the County's argument is that it never does the math." Thus, the Court concluded that a change in control under R&TC § 64(c)(1) did not occur and the AAB was wrong because it failed to follow the Property Tax Rules, which demand this result. The Court of Appeal also rejected the County's "substance over form" argument from the federal income tax laws and the county's "equitable conversion" argument.
The taxpayer's win in Ocean Avenue LLC may have minimal impact, however, because of pending legislation
in Sacramento. AB 2372, sponsored by Tom Ammiano (D-San Francisco) and Raul Bocanegra (D-Pacoima), would change the result reached
in Ocean Avenue LLC for entity transfers occurring on or after January 1, 2015. The bill adds new R&TC § 64(c)(1)(B),
which provides that a change in ownership would occur once cumulatively 90 percent or more of the ownership interests in an
entity have been transferred over any time period, even if no one owner obtains more than 50 percent. The counting toward
the 90 percent would begin on January 1, 2015, AB 2372 passed the California Assembly 57-13 on May 29th.
On August 4th, after holding a hearing, the Senate Appropriates Committee placed the bill on the Suspense File.
Suspense File bills are considered at one hearing after
the state budget has been prepared and the committee has a better sense of available revenue.
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