Supreme Court Won't Hear Wells Fargo's Appeal of Economic Substance Decision

For over 50 years, Bloomberg BNA’s renowned flagship daily news service, Daily Tax Report® has helped leading practitioners and policymakers stay on the cutting edge of taxation and...

By Erin McManus  

June 9 — The U.S. Supreme Court declined to review a decision by a federal appeals court that affirmed the disallowance by the Internal Revenue Service of a $423 million capital loss claimed by a subsidiary of Wells Fargo & Co. on the basis that the underlying transaction lacked economic substance.

The U.S. Court of Appeals for the Eighth Circuit found that a lease restructuring transaction entered into by WFC Holdings Corp. lacked economic substance even though the transaction generated non-tax economic profits and complied with the tax code.

The government argued that the Eighth Circuit decision wasn't a threat to legitimate transactions. The government described the WFC transaction as a prepackaged “tax product” sold to WFC by KPMG LLP that was meant “to create an enormous tax loss.”

Issues Left Open

The court's June 9 decision not to hear the case leaves open issues of economic substance, as it recently acknowledged in United States v. Woods, 134 S. Ct. 557, 2013 BL 333860 (2013), “so the denial of the petition might seem surprising,” Andy S. Grewal, a professor at the University of Iowa College of Law, told Bloomberg BNA.

“But past practice suggests that the Court prefers to resolve disputes where two circuit courts reach different results for the exact same transaction,” Grewal said.

“WFC followed the oft-failed approach of arguing that its complex facts made its case stand out from other complex transactions. That approach makes it easy for the government to avoid fundamental economic substance questions in its briefs in opposition. Going forward, taxpayers should frame their petitions differently,” Grewal said.

To contact the reporter on this story: Erin McManus in Washington at

To contact the editor responsible for this story: Cheryl Saenz at

Additional information is available in BNA's Supreme Court Docket Watch: 2013-2014 Term Tax Law Cases.

Request Daily Tax Report