Sale-Leasebacks: Loans In Disguise

My firm just submitted a post-trial brief in a commercial case where we argued that a sale agreement which had a leaseback and an option to repurchase was intended to be a financing arrangement and loan between the parties.  Here is the relevant excerpt from the brief: 

In Liona Corp.v. PCH Assoc., 804 F.2d 193 (2d. 1986) the Second Circuit summarized the
applicable law in this area and concluded that a sale leaseback agreement was not a true lease but a financing transaction:
“The district court was correct in looking beyond the form of the Sale-
Leaseback Agreement and Ground Lease for clarification of the true nature of the
transaction. The documents specified that the relationship between Liona and PCH
was that of landlord/tenant and provided that the documents represented the entire
agreement of the parties. However, the terms of the agreements, i.e., the percentage
rent provision, Liona’s option to become a 50% equity partner, and the numerous
controls given to Liona, conflict with the titles placed on the instruments.
Consequently, we are not bound to the four corners of the documents merely
because they purport to be a sale and lease, when the contents of the documents
indicate a different transaction. It is precisely this ambiguity in the terms of the
contract that requires the admission of parol evidence to determine the true intent of
the parties in entering into the transaction.”
* * *
“While there is a “strong presumption that a deed and lease … are what they
purport to be”, Fox v. Peck Iron & Metal Co., 25 B.R. 674, 688
(Bankr.S.D.Cal.1982), here there was substantial evidence upon which the
bankruptcy court and the district court could rely to find that the transaction is
something other than a true lease. Based on the circumstances of the negotiations
and the economic substance of the transaction, it was not error to conclude that the
parties intended to impose obligations and confer rights significantly different from
those arising from the ordinary landlord/tenant relationship”.
“We are faced with a transaction cast as a sale/leaseback arrangement, a
“relatively modern, and clever, structure of financing which affords significant
advantages to both purchaser-lessor and seller-lessee.” Id. at 688”…
“It seems clear that no true lease was contemplated by the parties here. It is
undisputed that Bernstein, acting for PCH, initiated the entire transaction, including
the purchase of the land by Liona. In In re Winston Mills, Inc., 6 B.R. 587, 598
(Bankr.S.D.N.Y.1980), the court stated that the fact that property is “purchased by
the lessor specifically for the lessee’s use” tends to prove that no true lease exists.
See also, In re Keydata Corp., 18 B.R. 907, 909 (Bankr.D.Mass.1982) (no true lease
where lessee “selected, inspected, contracted for, and received” the property). In
Fox v. Peck Iron & Metal Co., 25 B.R. 674, 681, 690 (Bankr.S.D.Cal.1982), the
court found no true lease where the “lessee” had originally requested a loan and the
transaction was structured as a lease solely to secure tax advantages”.
“Another factor indicating that this transaction does not involve a true lease
is that the purchase price was not related to the value of the land. A large inequality
or discrepancy in values has been characterized as a “strong circumstance” tending
to show that a transaction was a disguised financing scheme. Id. at 689; see also, In
re 716 Third Avenue Holding Corp., 340 F.2d 42, 47 (2d Cir.1964), cert. den., 381
U.S. 913, 85 S.Ct. 1535, 14 L.Ed.2d 434 (1965). Furthermore, PCH assumed many
of the obligations associated with outright ownership of the property, including
responsibility for paying property taxes and insurance”. As noted in the Senate
Report on Section 502 (b)(6) of the Bankruptcy Code:
“The fact that the lessee assumes and discharges substantially all the risks
and obligations ordinarily attributed to the outright ownership of the property is
more indicative of a financing transaction than of a true lease. The rental payments
in such cases are in substance payments of principal and interest either on a loan
secured by the leased real property or on the purchase of the leased real property.
See, e.g., Financial Accounting Standards Board Statement No. 13 and SEC Reg. SX,
17 C.F.R. section 210.3-16(g) (1977); cf., First National Bank of Chicago v.
Irving Trust Co., 74 F.2d 263 (2d Cir.1934); and Albenda and Lief, ‘Net Lease
Financing Transactions Under the Proposed Bankruptcy Act of 1973,’ 30 Business
Lawyer 713 (1975)”.
“S.Rep. No. 598, 95th Cong., 2d Sess. 64, reprinted in 1978 U.S.Code Cong.
& Ad.News 5787, 5850. Therefore, we find that PCH’s significant indicia of
ownership tend toward a finding that there is no true lease. Additionally, the
provisions allowing Liona to recover its investment if the hotel were refinanced,
and giving PCH the power to pre-pay Liona’s investment, at which time Liona
would share solely in profits, strongly suggest a transaction other than a lease”.
Other jurisdictions also recognize that a deed absolute coupled with a repurchase option creates a mortgage when the parties so intend. See, e.g., In Re Ellis ,674 F2d 1238 (9th Cir. 1982).
The IRS has summarized the law in this area on its website, including an explanation of the
standards that have been applied by the United States Supreme Court:
“The substance of a transaction, not its form, governs its tax treatment. Gregory v. Helvering, 293 U.S. 465 (1935). In Frank Lyon Co. v. United States, 435 U.S. 561, 573 (1978), the Supreme Court stated that “[i]n applying the doctrine of substance over form to recharacterize a sale and repurchase of federal securities as a loan, finding that the economic realities of the transaction did not support the form chosen by the taxpayer. The
Court has looked to the objective economic realities of a transaction rather than to the particular form the parties employed.” The Court evaluated the substance of the particular transaction in Frank Lyon to determine that it should be treated as a sale-leaseback rather than a financing arrangement. The Supreme Court described the transaction in Frank Lyon as “a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached.” Frank Lyon, 435 U.S. at 584. The Court subsequently relied on its approach in Frank Lyon to recharacterize a sale and repurchase of federal securities as a loan, finding that the economic realities of the transaction did not support the form chosen
by the taxpayer. Nebraska Dep’t of Revenue v. Loewenstein, 513 U.S. 123 (1994).
A sale-leaseback will not be respected unless the owner/lessor acquires and
retains “significant and genuine attributes” of a traditional owner, including
“the benefits and burdens of ownership.” Coleman v. Commissioner, 16
F.3d 821, 826 (7th Cir. 1994) (citing, Frank Lyon, 435 U.S. at 582-84).”
See, IRS Notice 2005-13 – Tax-Exempt Leasing Involving Defeasance,
http://www.irs.gov/businesses/article/0,,id=135286,00.html.

If you have any legal questions or need help litigating a sale agreement which constrains a leaseback and repurchase option, please contact Attorney Scott Lanin at (212) 764-7250 x 201 or use the contact form in the right sidebar.

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