Regarding the tax effect to LAPF of ordinary income passed through to it, the court simply noted that LAPF, as a tax-exempt entity, paid no taxes on this income.
To see this, assume that, during the four years that LAPF (ostensibly) held the nonvoting stock, Santa Clara had ceased doing business and liquidated.
As argued above, LAPF would never have received 90% of the proceeds upon liquidation, even though it ostensibly held 90% of the stock.
The Schotts probably should not be allowed a charitable deduction for their contribution of the now C stock to LAPF because, as of the date of the purported gift, the contribution could be defeated (to a large extent) by the Schotts exercising their warrants.
Santa Clara's earnings and profits would include the $114 million in earnings, less the small distributions to LAPF and the Schotts while the nonvoting stock was parked with LAPF.
LAPF essentially received an accommodation fee of about $1.8 million ($202,500 distribution plus $1.6 million repurchase proceeds) so that the Schotts could avoid recognizing $102 million of passthrough ordinary income from Santa Clara.
In addition, although LAPF may not have been contractually required to sell the nonvoting shares back to the Schotts, there was no public market for the stock.
Losing under this theory, Santa Clara and the Schotts would be treated as if the arrangement (nonvoting stock and warrants) had never been issued, the shareholders had not made a donation of stock to LAPF, and all of Santa Clara's $114 million of income had flowed through to the Schotts, who would have to include it as ordinary income.
(28) Second, LAPF patently would not have received 90% of the proceeds had Santa Clara liquidated while LAPF held the nonvoting stock.
Thus, for a small accommodation fee, 90% of the tax items of the Santa Clara business were allocated to LAPF (at no tax cost to LAPF), but the corresponding economic items inured to the benefit of the Schott family.
Therefore, had current law applied to the transaction, LAPF and any person who qualified as an "entity manager" of LAPF would have been subject to excise tax under Sec.