09-4869-cv
Gudmundsson v.United States




                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT
                                August Term 2010

Argued:    September 20, 2010                   Decided:     February 11, 2011

                              Docket No. 09-4869-cv

OLAFUR GUDMUNDSSON, SALLY A. RUDRUD,

                                                  Plaintiffs-Appellants,

                                          v.
UNITED STATES OF AMERICA,

                                                  Defendant-Appellee.

Before:      CALABRESI, KATZMANN, and CHIN, Circuit Judges.

             Appeal from a judgment of the United States District

Court for the Western District of New York (David G. Larimer, J.)

dismissing      plaintiffs-appellants'         claim   for    a   tax   refund.

Plaintiffs-appellants argued that they prematurely recognized and

significantly overvalued property received in connection with the

performance of services.         The district court disagreed and granted

summary judgment to the government.

             AFFIRMED.


                                 ARNOLD R. PETRALIA, Petralia, Webb &
                                      O'Connell, P.C., Rochester, New York
                                      (Kenneth L. Greene, on the brief),
                                      for Plaintiffs-Appellants.
                                 ELLEN     PAGE DELSOLE, Attorney, United
                                         States Department of Justice, Tax
                                         Division (William J. Hochul, Jr.,
                                         United States Attorney for the
                                 Western District of New York, of
                                 counsel), for John A. DiCicco,
                                 Acting Assistant Attorney General,
                                 for Defendant-Appellee.

CHIN, Circuit Judge

          In     2000,   plaintiffs-appellants   Olafur   Gudmundsson

("Gudmundsson") and Sally Rudrud (together, "plaintiffs")1 jointly

filed their 1999 federal tax return, reporting income earned on

stock Gudmundsson received as compensation from his employer,

Aurora Foods, Inc. ("Aurora"), on July 1, 1999.       The stock was

subject to several contractual and legal restrictions that impeded

its marketability for one year -- by which point the company's

stock value had plummeted.      Plaintiffs sought to amend the tax

return and obtain a refund, asserting that they had prematurely

reported the stock and significantly overvalued it as income under

§ 83 of the Internal Revenue Code (the "I.R.C."). After exhausting

their administrative remedies, they brought this action against the

government in the Western District of New York.      In a thoughtful

and thorough decision, the district court (Larimer, J.) granted

summary judgment in favor of the government.     We affirm.


                         STATEMENT OF THE CASE

A.   The Facts

          The parties stipulated to the following facts before the

district court.



     1
          Plaintiffs were married at all relevant times.      They
are now divorced but have pursued this claim together.

                                 - 2 -
             At all relevant times, Gudmundsson was an officer of

Aurora, which marketed food products under brand names such as Aunt

Jemima, Duncan Hines, and Van de Kamp.           Shortly after a corporate

reorganization,     Aurora    made      an   initial    public     offering      of

14,500,000 registered shares of common stock on July 1, 1998 (the

"IPO").    Gudmundsson became entitled to 73,105 unregistered shares

(the "Stock") by virtue of his participation in Aurora's incentive

compensation    plan.      The   plan    provided      for   the   Stock    to   be

distributed to him one year from the date of the IPO, on July 1,

1999.     Gudmundsson received the Stock as planned.

             Aurora subsequently provided Gudmundsson a W-2 that

calculated his income from the distribution to be a little less

than $1.3 million.         This figure reflected the mean price of

unrestricted shares of Aurora stock trading on the New York Stock

Exchange (the "Exchange Price") on July 1, 1999:                        $17.6875.

Gudmundsson reported this amount as income under I.R.C. § 83 --

which governs the taxation of property transferred in connection

with the performance of services -- in the federal tax return he

filed jointly with his then-wife, on or before April 15, 2000.

             Gudmundsson     held    the     Stock     subject     to      several

constraints.      First, these were "restricted securities" under

Securities and Exchange Commission ("SEC") Rule 144, 17 C.F.R.                    §

230.144(a)(3)(i), meaning they were acquired directly from the

issuer and not in a public offering, id.          Under Rule 144, the Stock

could not be sold on a public exchange until the expiration of a

holding period that, in Gudmundsson's case, ended on July 1, 2000.

                                     - 3 -
See Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 213 (3d

Cir. 2006) (discussing the operation of Rule 144).                    The Stock

could, however, be disposed of in a private placement sale or

pledged as security or loan collateral.           See McDonald v. Comm'r,

764 F.2d 322, 323 n.3 (5th Cir. 1985) (citing 17 C.F.R.                        §

230.144(a)(3)).

            Second, the Stock was subject to an agreement among

Aurora's    various   corporate     entities    and    employee       "members,"

including Gudmundsson (the "Agreement"). The Agreement prohibited,

inter alia, the public disposition of the Stock before the second

anniversary of the IPO, July 1, 2000.          Until then, transfers could

be made only to a group of "permitted transferees," which included

family members and relatives.        Permitted transferees were bound by

the Agreement and had to agree in writing to abide by its terms.

Aurora     would   treat   any    transfers    other    than     to    permitted

transferees as null and void, and in some instances it could

intervene to stop a forbidden transfer.          Forfeiture of the Stock,

however, was not one of the penalties contemplated for violations
of the Agreement, whether by Gudmundsson or a permitted transferee.

            Finally, Gudmundsson was subject to Aurora's Insider

Trading Policy (the "Policy").          Among other things, the Policy

required    compliance     with   certain   waiting    periods    and   consent

procedures prior to trading Aurora stock.          Violation of the Policy

could result in disciplinary action, including termination of
employment.

            Conditions at Aurora deteriorated in the year between

                                    - 4 -
Gudmundsson's   receipt    of   the   Stock       and    expiration       of   the

restrictions imposed by the Agreement and Rule 144.                Unrestricted

shares of Aurora stock -- which had been worth $17.6875 per share

on July 1, 1999 -- lost a quarter of their value over three days

that November following the company's announcement that it would

not meet estimated fourth quarter earnings.             By December 31, 1999,

the Exchange Price had fallen to $9.25.

           In   February    2000,     Aurora's          auditors    discovered

irregularities in the company's financial statements, and the board

of directors announced the formation of a committee to investigate

Aurora's   accounting   practices     and   the    possibility       of    fraud.
                                                   2
Several senior-level executives resigned.                The Exchange Price

tumbled another fifty percent. That April, Aurora announced an $81

million downward adjustment in pretax earnings previously reported

for most of 1998 and 1999.          By the time the Stock was freely

marketable on July 1, 2000, the Exchange Price had fallen to

$3.8375, a decline of almost $14 in one year.
B.   Prior Proceedings

           In 2003, plaintiffs filed an amended tax return, claiming

a refund of $301,834 plus interest based on the mean Exchange price

of Aurora stock on December 31, 1999,3 rather than the price on


     2
          Eventually, the executives responsible for the
wrongdoing were indicted and pled guilty to securities fraud and
related charges. Gudmundsson was not involved, and there is no
evidence that he had knowledge of the misconduct.
     3
           This amount was based on a mistaken Exchange Price of
$7.5625.   The Exchange Price on December 31, 1999 was actually
$9.25.

                                 - 5 -
July 1, as originally reported.     The Internal Revenue Service (the

"IRS") disallowed the claim in 2006. On March 20, 2008, plaintiffs

filed this refund action below, pursuant to 28 U.S.C. § 1346(a)(1)

and 26 U.S.C. § 7422.

            In the proceedings before the district court, the parties

agreed that the transaction was governed by I.R.C. § 83 and that

the Stock was "transferred" to Gudmundsson within the meaning of

that provision on July 1, 1999.          They disagreed as to when the

Stock became taxable income.        The government argued that the

original tax return had properly reported the Stock on July 1,

1999, and properly used the Exchange Price that day as the measure

of value.     Plaintiffs contended that they had been premature to

treat the Stock as income on July 1, 1999, given the restrictions

still encumbering it at the time.        Alternatively, they argued that

if July 1, 1999 was the correct recognition date, then the Stock

should not be treated as if it could be sold at the same price as

Aurora's unrestricted shares.

            The parties cross-moved for summary judgment. On October
27, 2009, the district court (Larimer, J.) entered summary judgment

in favor of the government, holding that the Stock was reportable

as of July 1, 1999 and that the day's Exchange Price was an

appropriate    basis   for   measuring    the   income   received.   See

Gudmundsson v. United States, 665 F. Supp. 2d 227, 236-39 (W.D.N.Y.

2009).   This appeal followed.




                                  - 6 -
                                 DISCUSSION

A.    Standard of Review

           This Court reviews a decision granting summary judgment

de novo.   Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield

of N.J., Inc., 448 F.3d 573, 579 (2d Cir. 2006).         Summary judgment

is appropriate "if there is no genuine issue as to any material

fact, and if the moving party is entitled to a judgment as a matter

of law."   Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.

2005) (citing Fed. R. Civ. P. 56(c)).         The facts of this case were

stipulated and therefore only questions of law are presented.
B.    Taxation of Property under I.R.C. § 83

           At the heart of this case is I.R.C. § 83, which governs

the   taxation   of   property   transferred    in   connection   with   the

performance of services.5        Section 83 was enacted as part of the


      5
           Section 83(a) provides:

           If, in connection with the performance of
           services, property is transferred to any
           person other than the person for whom such
           services are performed, the excess of--


                (1) the fair market value of such
           property (determined without regard to any
           restriction other than a restriction which by
           its terms will never lapse) at the first time
           the rights of the person having the
           beneficial interest in such property are
           transferable or are not subject to a
           substantial risk of forfeiture, whichever
           occurs earlier, over

                (2) the amount (if any) paid for such
           property,

           shall be included in the gross income of the

                                   - 7 -
Tax Reform Act of 1969, Pub. L. No. 91-172, 83 Stat. 487 (1969).

It was designed to "curb the use of sales restrictions to defer

taxes on property given in exchange for services," Robinson v.

Comm'r, 805 F.2d 38, 41 (1st Cir. 1986), which had become a popular

practice among corporations and their employees.              The provision's

general rule, set forth in § 83(a), has both a timing element and

a valuation element.       As a matter of timing, property received as

compensation     is   to   be   recognized   as    income   as    soon   as    the

recipient's rights therein are "transferable" or no longer "subject

to a substantial risk of forfeiture," whichever happens first.

I.R.C. § 83(a); see also Treas. Reg. § 1.83-3(b).            The value of the

income received is the property's "fair market value," measured

without regard to any restriction, "other than [a] restriction

which by its terms will never lapse," I.R.C.                  § 83(a) -- also

known as a "nonlapse" restriction, as distinguished from one that

will "lapse," see Treas. Reg.                § 1.83-3(h), (i).

            Both the timing and valuation components are at issue in

this    case,   which   presents   two   questions:         (1)   when   was   it

appropriate to recognize the Stock as taxable income?, and (2) what

was its fair market value on that date?           We address these issues in

turn.


            person who performed such services in the
            first taxable year in which the rights of the
            person having the beneficial interest in such
            property are transferable or are not subject
            to a substantial risk of forfeiture,
            whichever is applicable.

I.R.C. § 83(a).

                                    - 8 -
     1.   The Recognition Date

          Plaintiffs   argue   that    the   district   court   erred    in

recognizing the Stock as income on July 1, 1999. They contend that

the restrictions still in force on that date rendered it both non-

transferable and subject to a substantial risk of forfeiture.4           To

survive summary judgment, plaintiffs needed to show the existence

of both these conditions, as § 83(a) recognizes property as soon as

either is lifted.   The district court, however, concluded that the

Stock was both transferable and not subject to a substantial risk

of forfeiture on July 1, 1999.        For the reasons that follow, we

agree.
          a.   Transferability and Substantial Risk of Forfeiture

          Section 83(c)(1) provides that property is subject to a

"substantial risk of forfeiture" when the "rights to full enjoyment

of such property are conditioned upon the future performance of

substantial services by any individual."       I.R.C.   § 83(c)(1).     The

regulations further explain that the existence of such a risk

"depends upon the facts and circumstances" of each case.          Treas.

Reg. § 1.83-3(c)(1).    It exists where rights "are conditioned,

directly or indirectly, upon the future performance (or refraining

from performance) of substantial services by any person, or the


     4
          Plaintiffs argue for alternative recognition dates --
e.g., December 31, 1999, July 1, 2000 -- that we need not address
because we agree with the district court that the Stock was
reportable on July 1, 1999. This date was stipulated to be the
date of the Stock transfer, and it was the one reported on
plaintiffs' original tax return. We note, however, that it was
not necessarily the first day on which the Stock was reportable
under § 83. See Gudmundsson, 665 F. Supp. 2d at 232 n.2.

                                 - 9 -
occurrence of a condition related to a purpose of the transfer, and

the possibility of forfeiture is substantial if such condition is

not satisfied."    Id.    For example, where the property is received

"subject to a requirement that it be returned if the total earnings

of the employer do not increase, such property is subject to a

substantial risk of forfeiture." Id. § 1.83-3(c)(2). On the other

hand, circumstances that do not constitute a substantial risk of

forfeiture include the risk that the property's value will decline,

as well as a requirement that the property be returned if the

recipient is discharged for cause or for committing a crime.                   Id.

§ 1.83-3(c)(1), (2).

            Substantial risks of forfeiture are also built into the

definition of transferability.         Property is "transferable" under §

83(c)(2) "only if the rights in such property of any transferee are

not subject to a substantial risk of forfeiture."                   I.R.C.       §

83(c)(2). The regulations explain that "transferable" property can

be sold, assigned, or pledged "to any person other than the

transferor" without that person also incurring a substantial risk

of forfeiture.    Treas. Reg. § 1.83-3(d).           Transferability is not a

demanding   standard,     as    the   ability   to    transfer   to    even    one

transferee free of that substantial risk is presumed to constitute

"transferability,"       even   though    it    may    not   also     mean    full

marketability.    See Horwith v. Comm'r, 71 T.C. 932, 939-40 (1979).

            Finally, § 83 contains a "[s]pecial rule[]" for "[s]ales

which may give rise to suit under section 16(b) of the Securities

Exchange Act of 1934," providing that if the sale of property given


                                      - 10 -
as compensation at a profit could subject a person to suit under §

16(b), that person's rights in the property are deemed to be

subject to a substantial risk of forfeiture and not transferable.

I.R.C. § 83(c)(3).5
           b.   Application to the Stock

                (1)   Substantial Risk of Forfeiture

           We are not persuaded by plaintiffs' arguments that the

Stock was subject to a substantial risk of forfeiture on July 1,
1999.    Plaintiffs first argue that under the circumstances, the

risk of termination Gudmundsson faced if he failed to comply with

the Policy constituted a substantial risk of forfeiture.   Section

83 is concerned with the forfeiture of interests in property,

however, not in employment, and a substantial risk of forfeiture

requires that those property interests be capable of being lost.

See Merlo v. Comm'r, 492 F.3d 618, 622 (5th Cir. 2007); Theophilos

v. Comm'r, 85 F.3d 440, 447 n.18 (9th Cir. 1996) (inquiring into

"the chances [that] the employee will lose his rights in property

transferred by his employer" to determine substantial risk of

forfeiture (emphasis omitted)). Therefore, the risk of termination

     5
          The parties agree that at all relevant times
Gudmundsson was an "insider" within the meaning of § 16(b). See
Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001)
("An 'insider' is . . . a beneficial owner of more than ten
percent of any class of the company's non-exempt, registered
equity securities, or a director or officer of the company
issuing the stock." (citing 15 U.S.C. § 78p(a), (b)). In the
district court, plaintiffs asserted that the Stock came within
§ 83(c)(3) on July 1, 1999 because Gudmundsson could have been
subject to a § 16(b) suit at that time. The district court
disagreed. See Gudmundsson, 665 F. Supp. 2d at 230, 234-35.
Because plaintiffs do not appeal this aspect of the decision, we
do not address it.

                               - 11 -
of employment is relevant under § 83 only if it has a causal

connection to the loss or potential loss of rights in the property

given as compensation. See Merlo, 492 F.3d at 622 (termination for

violating   insider    trading     policy   "was   not    enough    to   cause

[taxpayer] to forfeit the shares").          No such connection exists

here. The Agreement did not provide that termination for violation

of the Policy -- or termination for any reason at all -- would or

could result in the forfeiture of the Stock.             We therefore reject

plaintiffs' argument.

            Second,   plaintiffs    argue   that   Gudmundsson       would   be

exposed to a suit under § 10(b) of the Securities Exchange Act of

1934, 15 U.S.C. § 78j(b),6 if he transferred the Stock on July 1,

1999, and that this created "facts and circumstances" evidencing a

substantial risk of forfeiture, Treas. Reg. § 1.83-3(c), analogous

to the risk of suit under § 16(b), see I.R.C.                      § 83(c)(3).

            We hold that the district court correctly rejected the

argument, as we conclude that Congress has already indicated that

§ 10(b) does not create a substantial risk of forfeiture under                §

83.   See Merlo , 492 F.3d at 622 ("For civil suits such as                  [§

10(b)] to be considered within the definition of a substantial risk

of forfeiture, Congress would have to amend § 83."); United States


      6
          Under § 10(b), it is unlawful to "use or employ, in
connection with the purchase or sale of any security . . . , any
manipulative or deceptive device or contrivance" in violation of
SEC rules, including rules against insider trading and fraud. 15
U.S.C. § 78j(b); see 17 C.F.R. § 240.10b-5. Because we hold that
liability under this provision does not create a substantial risk
of forfeiture under § 83, we need not decide whether Gudmundsson
could have been the subject of such a suit.

                                   - 12 -
v. Tuff, 469 F.3d 1249, 1256 (9th Cir. 2006).                  Congress inserted

directly    into    the   statutory      text   a     "[s]pecial    rule[]"     using

language that refers only to suits under § 16(b), and by doing so

it indicated "that civil suits are not generically covered by

I.R.C. § 83."       Tuff, 469 F.3d at 1256; see I.R.C.                     § 83(c)(3).

We therefore reject plaintiffs' effort to use the regulations'

"facts and circumstances" analysis to bootstrap                               § 10(b)

liability into § 83.
                    (2)   Transferability

            The Stock was not subject to a substantial risk of

forfeiture on July 1, 1999, and although this is enough for income

recognition under § 83, we briefly address plaintiffs' arguments

regarding   the     transferability       of    the   Stock,   as     well.      As   a

preliminary matter, plaintiffs stipulated -- and the Agreement was

clear -- that Gudmundsson could transfer the Stock to "permitted

transferees," which included his family members and relatives, any

of whom were "person[s] other than [Aurora,] the transferor," see

Treas. Reg. § 1.83-3(d).            Plaintiffs assert, however, that the

Stock was not transferable because "in reality, . . . [t]he various

restrictions       imposed    by   law   and    agreement      made    [the    Stock]

impossible to sell."         Pls.' Br. 24.      Regardless of whether this is

true,   the     argument       misunderstands          what    §      83    requires.

Transferability is not just a question of marketability.                      In fact,

even if sales are prohibited for a period of time, property may be

transferable if it can be pledged or assigned.                        See Tanner v.

Comm'r, No. 02-60463, 2003 WL 21310275, at *2 (5th Cir. Mar. 26,

                                      - 13 -
2003); see also Treas. Reg.               § 1.83-3(d).

            We   also      reject   plaintiffs'      effort     to    analogize      the

Agreement's      transfer        restrictions     to those in           Robinson       v.

Commissioner, 805 F.2d 38 (1st Cir. 1986).                In Robinson, the First

Circuit concluded that the stock at issue was not transferable

because it had been received subject to an agreement that contained

a mandatory sell back provision prohibiting any disposal of the

shares other than to the employer for one year.                      Id. at 39.       In

short, for Robinson to transfer the stock "to any person other than
the transferor," Treas. Reg. § 1.83-3(d), he would be forced to

breach the agreement, Robinson, 805 F.2d at 42.                 By contrast, here

the   Agreement      permitted      at    least   some    transfers         during   the

restricted period.         Further -- as plaintiffs stipulated below --

the Agreement did not provide for the Stock to be forfeited if

Gudmundsson or a transferee violated its terms.                  The agreement in

Robinson, however, gave the employer the power to recoup the stock

after an event of noncompliance.                Id. at 39-40; see Hernandez v.

United    States,    450    F.    Supp.    2d   1112,    1119   (C.D.       Cal.   2006)

(rejecting analogy to Robinson where agreement did not contain

mandatory     sell    back       provision).7       Robinson         does    not     help

plaintiffs' case and is not a reasonable analogue:                          individuals

saddled by more complete transfer restrictions than was Gudmundsson

have been held to have transferable interests under § 83.                             See

      7
          In concluding that Robinson's stock could not be
recognized under § 83(a) until these restrictions expired, the
First Circuit held that transferability could not depend on "a
hypothetical, back-door transfer in breach of the option
agreement." Robinson, 805 F.2d at 42. Rather, it must operate
"on standard practices" and the "observance of contracts." Id.

                                         - 14 -
Tanner, 2003 WL 1922926, at *2 (deeming stock to be transferable

despite two-year moratorium on sales where taxpayer could and did

give the stock to a relative).

            To summarize, the district court was correct to recognize

the Stock as income on July 1, 1999, as the Stock was transferable

and not subject to a substantial risk of forfeiture on that day.

This conclusion was correct under § 83(a) and in general, as income

in whatever form is taxable in the year in which it is received,

Wolder v. Comm'r, 493 F.2d 608, 612-13 (2d Cir. 1974);           see also

Sakol v. Comm'r, 574 F.2d 694, 700 (2d Cir. 1978), and stock is

usually valued on the day it is issued, United States v. Roush, 466

F.3d 380, 385 (5th Cir. 2006); cf. Wolder, 493 F.2d at 612-13.
     2.     The Fair Market Value of the Stock

            The remaining question is the value of the Stock on July

1, 1999.    Section 83(a) recognizes property at its "fair market

value (determined without regard to any restriction other than a

restriction which by its terms will never lapse) . . . over . . .

the amount (if any) paid for such property."        I.R.C.     § 83(a).8

            Plaintiffs contend that the district court erred in two

ways when it determined the fair market value of the Stock. First,

they assert that, based on an erroneous reading of § 83(a), the

court    impermissibly   departed   from   the   traditional    method     of

determining fair market value set forth in            United States v.

Cartwright, 411 U.S. 546 (1973).           Second, they contend that


     8
          As Gudmundsson did not pay for the Stock, the amount of
income is only a question of its fair market value.

                                - 15 -
restrictions imposed by law, rather than by contract, cannot be

considered "lapse" restrictions within the meaning of § 83(a).             We

consider these arguments in turn.
           a.      The Calculation of Fair Market Value under § 83

           In general, the term "fair market value" is understood to

mean "the price at which the property would change hands between a

willing buyer and a willing seller, neither being under any

compulsion to buy or to sell and both having reasonable knowledge

of relevant facts."      Cartwright, 411 U.S. at 551 (quotation mark

omitted); accord United States v. Boccagna, 450 F.3d 107, 115 (2d

Cir. 2006).      Cartwright articulated the "general understanding of

fair market value used throughout the [I.R.C.] in the absence of a

specific statutory rule."       Harrison v. United States, 475 F. Supp.

408, 413 (E.D. Pa. 1979). For instance, this definition is used to

value a decedent's estate under I.R.C. § 2031, Cartwright, 411 U.S.

at 554-56, and to assess economic income for minimum tax purposes

under I.R.C.        §§ 56 and 57,         McDonald, 764 F.2d at 322, 329;

Estate of Gresham v. Comm'r, 752 F.2d 518, 523 (10th Cir. 1985).

           Relying on these cases, plaintiffs contend that the fair

market   value    of   the   Stock   --    restricted   by   the   Agreement,

unregistered, and not yet publicly marketable -- is determined by

the private market, as that is where the willing buyers exist.

They argue that nothing in § 83 contains the "specific statutory

rule" that requires using a method of computing fair market value

other than Cartwright's. See McDonald, 764 F.2d at 329 (expressing

"a strong disinclination to disturb the established meaning of the


                                     - 16 -
term 'fair market value' as it was enunciated" in Cartwright).

This is incorrect. Section 83 is, of course, different from I.R.C.

§ 57 or I.R.C. § 2031, because it calls for fair market value to be

"determined without regard to any restriction other than [one]

which by its terms will never lapse."          I.R.C. § 83(a)(1).      The

methods used to calculate fair market value under other I.R.C.

provisions -- and the hypothetical value of the Stock under other

I.R.C. provisions -- are irrelevant to its value under § 83(a). It

is unsurprising therefore that plaintiffs cite no instances in

which Cartwright's definition of "fair market value" has been used

to analyze "fair market value" under § 83:            we have discussed

before that this language unambiguously breaks from common usage,

Sakol, 574 F.2d at 699-701, and every other court to consider the

issue has agreed, see, e.g., Roush, 466 F.3d at 386 ("[T]he fact

that stock is restricted, or even specifically valued for the

purposes of private sales at less than the fair market value, does

not affect the valuation of the shares for [§ 83] purposes.");

McDonald, 764 F.2d at 330, 340-41; Pledger v. Comm'r, 641 F.2d 287,

291, 293 (5th Cir. 1981); see also Kolom v. Comm'r, 454 U.S. 1011,

1016 (1981) (Powell, J., dissenting) ("[Section] 83 . . . modifies

th[e] phrase [fair market value] with a parenthetical indicating

that restrictions that lapse are to be ignored."); Gresham, 752

F.2d   at   521-22.   We   therefore   hold   that   the   district   court

correctly rejected plaintiffs' argument and determined fair market

value according to the directives of § 83(a).




                                 - 17 -
            b.     Lapse and Nonlapse Restrictions

            On July 1, 1999, the Stock was subject to two transfer

restrictions:          one imposed by contract (the Agreement) and one

imposed   by     law    (Rule   144).      The   question   is   whether   these

restrictions "will never lapse" under § 83; only in that event

would they be considered in determining value.              See I.R.C.         §

83(a)(1).      The regulations define a nonlapse restriction as "a

permanent limitation on the transferability of property" that will

(1) require the property to be sold "at a price determined under a

formula," and (2) that will apply to all subsequent transferees.

Treas. Reg. § 1.83-3(h).9               The regulations also provide that

"[l]imitations imposed by registration requirements of State or

Federal security laws or similar laws imposed with respect to sales

or other dispositions of stock or securities are not nonlapse

     9
          We note that § 83 is different from but not
inconsistent with Cartwright's core principle. There, the Court
rejected a regulation that taxed the decedent's mutual fund
shares at the "asked" price -- the price "used by the [mutual]
fund when selling its shares to the public" -- because, "[a]s a
matter of statutory law [under the Investment Company Act of
1940], holders of mutual fund shares cannot obtain the 'asked'
price from the fund." Cartwright, 411 U.S. at 552. In other
words, the regulation "purport[ed] to assign a value to mutual
fund shares that the estate could not hope to obtain and that the
fund could not offer." Id. at 553. The more reasonable value
was the "redemption" price, "the only price that a shareholder
may realize and that the fund -- the only buyer -- will pay,"
which was, also as a matter of statutory law, somewhat less than
the "asked" price. Id. at 552-53.

          If the same issue had been considered under § 83(a),
the result likely would have been the same. Section 83(a)
adjusts its method of calculating fair market value when property
is subject to permanent pricing or transfer limitations that
negatively affect its value -- nonlapse restrictions. See I.R.C.
§ 83(a). A statutorily-set price that will run to all potential
transferees is such a restriction. See Treas. Reg. § 1.83-3(h).

                                        - 18 -
restrictions."          Id.     Applying these rules, the district court

determined       that     the    Agreement      and       Rule   144    both    imposed

restrictions that lapsed, and so disregarded them in calculating

the fair market value of the Stock on July 1, 1999.

               Plaintiffs argue that this was error.                   They argue that

because § 83 does not explicitly say that securities laws lapse,

these laws do not lapse, and that Treasury Regulation § 1.83-3(h)

therefore unreasonably includes them in the statute's scope.                        The

regulation contravenes what they claim was Congress's intention for
lapse        restrictions       to    include      only     contractually      imposed

restrictions, and not those imposed by law.

               We disagree.          The plain text of the statute broadly

requires that "any restriction" be disregarded in valuing the

property,       limited       only   by   the      permanence     of     a   particular

restriction.       Nothing in the statute indicates that Congress meant

to further differentiate a restriction on the basis of its source.

               Nor do we see any legitimate reason to infer such a

distinction.       Targeting restrictions was the point of § 83.                    For

context, before the provision was enacted in 1969, restricted stock

received preferential treatment in the I.R.C.10                         It "was taxed

either when the restrictions lapsed or when the stock was sold,"

and the tax was levied "upon the difference between the purchase


        10
          Under earlier law, the restrictions were "cooperatively
imposed," allowing the employee to defer the payment of taxes
until the restrictions lapsed while, at the same time, enjoying
the voting and dividend benefits of shareholding. Sakol, 574
F.2d at 698-99. The corporate employer, meanwhile, could pay the
employee "with dollars that, because they may be tax-free or
tax-favored, may be fewer." Id. at 699.

                                          - 19 -
price and the fair market value at the time of transfer or when the

restrictions lapsed, whichever was less."                    Alves v. Comm'r , 734

F.2d 478, 481 (9th Cir. 1984).             At the same time, and by contrast,

contributions to employee pension plans and profit sharing trusts

"were immediately taxable in the year of receipt."                          Id.     Thus,

"Congress's primary intention in enacting § 83 was to address the

disparity created by the favorable treatment of restricted stock

plans    vis-a-vis         other     mechanisms        for      providing     deferred

compensation."        Theophilos, 85 F.3d at 444; see also Grant v.
United   States,      15    Cl.    Ct.   38,    41    (1988).      The    problem     was

essentially     one    of    timing,     and     therefore      Congress    drafted    a

"blanket rule,"       Sakol, 574 F.2d at 699, that "ignor[ed] any

value-depressing effect of [temporary] transfer restrictions" in

computing income, id. at 698 n.14.

           We previously addressed § 83 and its purpose in Sakol.

At issue there was stock that was held subject to a temporary

transfer restriction imposed by the plaintiff's stock purchase

plan.    Id. at 696.          The IRS had taxed the stock, under § 83,

without taking into account any temporary loss of value that might

be caused by the transfer restriction.                   The plaintiff sued.           We

agreed   with    the        Tax    Court       that   the    IRS's       approach     was

constitutionally acceptable and held that restrictions "other than

permanent, nonlapsing restrictions[] may not be considered in

determining fair market value."                Id.    "Because nonqualified plans

have been the vehicles of tax avoidance," we concluded, "Congress

may clothe the tax incidental to them with a ready-made, rather

than a custom-tailored, suit."             Id. at 701.

                                         - 20 -
              The decision was addressed to the contract restrictions

as well as the constitutional questions presented, but we did not

hold,    as    plaintiffs   now    imply,     that   contract   restrictions

constitute the universe of lapsable restrictions under § 83.              Nor

was our holding interpreted that way, as Sakol's reasoning was

extended to legal restrictions shortly thereafter.                See, e.g.,

Pledger, 641 F.2d at 293; Grant, 15 Cl. Ct. at 41.

              Plaintiffs are correct that contracts were the primary

source of the problem the statute was designed to solve, but its
plain language is not limited to contractual restrictions.            Again,

§   83   differentiates     only   on   the    basis   of   a   restriction's

permanence, not on its type or source.           See Grant, 15 Cl. Ct. at

41.      The statute's legislative history reveals that this was

deliberate.      In its proposal for what became § 83, the Treasury

Department recommended that certain securities law restrictions be

given the same treatment as those that never lapse.                  Koss v.

Comm'r, 57 T.C.M. (CCH) 882, n.14 (Tax Ct. 1989).               The proposal

fared poorly:

              Both the House Ways and Means Committee and
              the Senate Finance Committee ignored the
              Treasury's   recommendation   and   in   their
              respective versions of section 83 provided
              that only a nonlapse restriction will affect a
              stock's fair market value for the purpose of
              income realization. The Treasury, having no
              choice but to comply with the wishes of
              Congress, provided in the proposed regulations
              to section 83 that registration requirements
              imposed by federal or state securities laws do
              not qualify as either nonlapse or substantial
              risk of forfeiture restrictions . . . .

Ronald Hindin, Internal Revenue Code Section 83 Restricted Stock

Plans, 59 Cornell L. Rev. 298, 332 (1974) (footnotes omitted).            It

                                   - 21 -
is clear that the regulation plaintiffs challenge effectuates

Congress's intent, as the regulation provides that "[l]imitations

imposed by registration requirements of State or Federal security

laws or similar laws imposed with respect to sales or other

dispositions of stock or securities are not nonlapse restrictions."

Treas. Reg. § 1.83-3(h).

              In sum, we hold that all lapse restrictions -- whether

imposed by contract or by law -- must be disregarded in calculating

income under § 83.         The district court was correct to disregard
Rule 144, which was a restriction on the Stock's marketability that

"by its terms" lapsed on July 1, 2000.              See I.R.C. § 83(a)(1);

accord Grant, 15 Cl. Ct. at 41 (holding that because Rule 144's

restrictions will eventually expire, "there can be no merit to the

argument      that   the    shares    are     burdened   by   a     nonlapsing

restriction").       Stripped of restrictions, the Stock was like

Aurora's unrestricted shares trading on the New York Stock Exchange

on July 1, 1999, and the district court correctly used the Exchange

Price to determine fair market value, which is how stock is

typically valued under § 83(a), see, e.g., Roush, 466 F.3d at 385-

86; Sakol, 574 F.2d at 696, as well as in general,                see Boyce v.

Soundview Tech. Grp., Inc., 464 F.3d 376, 385 (2d Cir. 2006); E.

Serv. Corp. v. Comm'r, 650 F.2d 379, 384 (2d Cir. 1981); Maxim Grp.

LLC v. Life Partners Holdings, Inc.           , 690 F. Supp. 2d 293, 301

(S.D.N.Y. 2010).

              Finally, we acknowledge, as we have before, that in the

course   of    addressing    restricted     stock   arrangements,     Congress

employed a rule that is "reasonably well tailored," but that can

                                     - 22 -
operate unfairly in an individual case.            Sakol, 574 F.2d at 699.

This   may   be   such   a   case,    but   this   is   the   result   §   83(a)

contemplates.      As we have previously noted, taxpayers participate

in stock-based compensation plans voluntarily and "presumably aware

of Section 83(a)'s tax consequences," id., or at least that

the risk of loss is part of any stock acquisition,              McDonald, 764

F.2d at 339 n.29; Pledger, 641 F.2d at 291.

                                 CONCLUSION

             We   have   considered    plaintiffs'      other   arguments    and

conclude that they are without merit. The judgment of the district

court is AFFIRMED.




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