                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 4 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    EDDIE CORDES, INC., Transferee,

                Petitioner - Appellant,

    v.                                                   No. 02-9003
                                                       T.C. No. 18131-98
    COMMISSIONER OF INTERNAL
    REVENUE,

                Respondent - Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       In 1997, Cordes Finance Corp., an Oklahoma corporation, was merged into

petitioner Eddie Cordes, Inc., also an Oklahoma corporation. In this action,

petitioner challenges the decision of the United States Tax Court holding

petitioner liable as a transferee under 26 U.S.C. § 6901 for the tax assessment of

Cordes Finance Corp. for its 1990 taxable year. Because the Tax Court correctly

found petitioner to be a transferee as a matter of law, we affirm.

       We review de novo the legal determination of the Tax Court made on fully

stipulated facts.   Worden v. Comm’r , 2 F.3d 359, 361 (10th Cir. 1993). Section

6901 provides that “the liability, at law or in equity, of a transferee of [a

taxpayer’s] property” shall “be assessed, paid, and collected in the same manner

and subject to the same provisions and limitations as in the case of the taxes with

respect to which the liabilities were incurred.” 26 U.S.C. § 6901. The term

“transferee” includes the successor of a corporation. Treas. Reg.

§ 301.6901-1(b).

       The Tax Court held that because petitioner’s liability arose from its

contractual obligations under the merger agreement, it was liable as a transferee

at law. We agree. In the merger agreement, petitioner expressly agreed to be

liable and responsible for all the liabilities and obligations of itself and Cordes

Finance Corp. See U.S. Tax Court Exs., Agreement and Plan of Merger at ¶ 1.4.

“Where a statutory merger has occurred in which the transferee, as the surviving


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corporation, expressly or impliedly agrees to assume the liabilities of the merged

corporation, the survivor is liable as a transferee at law, for the income tax

liability of the merged corporation for periods prior to the transfer.”      Harder

Servs., Inc. v. Comm’r , 67 T.C. 585, 598 (1976) (footnote omitted). Because

petitioner expressly assumed the liabilities of Cordes Finance Corp., the Tax

Court correctly concluded that it is liable as a transferee at law under § 6901.      1



       In its brief to this court, petitioner advances three propositions with which

neither respondent nor we disagree: that the existence of transferee liability in

this case is a matter of Oklahoma law; that § 6901 does not impose substantive

liability on a transferee but merely provides a means of collecting tax liability of

another entity from a transferee; and that it is respondent’s burden to show that

petitioner is liable as a transferee of property.

       The remainder of petitioner’s brief is devoted to its argument that, while it

may be directly liable for the taxes by operation of state law relative to corporate

mergers, it is not liable as a transferee. We agree with respondent that this issue




1
       The presence of an express agreement to assume the liabilities of Cordes
Finance Corp. distinguishes this case from     Missile Systems Corp. of Texas v.
Commissioner , 23 T.C.M. (CCH) 1276, 1964 WL 1032 (1964). Additionally, the
Tax Court has rejected petitioner’s argument that it cannot be both directly liable
and also liable as a transferee.   S. Pac. Transp. Co. v. Comm’r , 84 T.C. 387,
394-95 (1985).

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was not raised to the Tax Court. We have thoroughly examined the record in this

case and can find no specific mention of this argument.

       While in its trial memorandum petitioner listed the issues as whether it is

liable as a transferee and, if so, the extent of that liability, R. doc. 15 at 1,

petitioner had earlier conceded that it was the transferee of Cordes Finance Corp.

In its synopsis of legal authorities, petitioner argued only that its liability as a

transferee was limited to the value of the assets it received.     Id. at 2. The Tax

Court in its memorandum opinion stated the sole issue for decision as “whether

the transferee liability of petitioner . . . is limited to the value of the assets it

received in the merger.” R. doc. 21 at 2.

       This court will not consider a new theory on appeal, even one “that falls

under the same general category as an argument presented at trial or . . . a theory

that was discussed in a vague and ambiguous way” at trial.        Bancamerica

Commercial Corp. v. Mosher Steel of Kan., Inc.        , 100 F.3d 792, 798-99 (10th Cir.)

(quotation omitted), op. am. on other grounds,       103 F.3d 80 (10th Cir. 1996).

“[T]o preserve the integrity of the appellate structure, we should not be

considered a ‘second shot’ forum . . . where secondary, back-up theories may be

mounted for the first time.”    Tele-Communications, Inc. v. Comm’r       , 104 F.3d

1229, 1233 (10th Cir. 1997) (quotation omitted). Petitioner was obligated by our

Rule 28.2(C)(2) to precisely identify the reference in the record where this


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particular issue was raised and ruled on. Because petitioner has failed to comply

with this rule, it has waived appellate consideration of this argument.

      The judgment of the United States Tax Court is AFFIRMED.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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