                        T.C. Memo. 1999-292



                      UNITED STATES TAX COURT



         MARK J. HANNA, P.C., TRANSFEREE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10705-97.                Filed September 1, 1999.



     Charles F. Daily, Jr., for petitioner.

     Bruce M. Wilpon, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     SWIFT, Judge:   Respondent determined that petitioner, as

transferee of assets, is liable for $25,297 plus interest for the

transferor's Federal income tax deficiency for the year 1993.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue, and
                               - 2 -

all Rule references are to the Tax Court Rules of Practice and

Procedure.

     The issue for decision is whether petitioner is liable as a

transferee under the Texas Uniform Fraudulent Transfer Act, Tex.

Bus. & Com. Code Ann. secs. 24.001 to 24.012 (West 1987 & Supp.

1999), for $25,297 relating to the transferor's Federal income

tax deficiency.


                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

     In 1990, Mark J. Hanna (Hanna) organized Hanna & Associates,

P.C. (Associates PC), through which to conduct a law practice in

the State of Texas.   Also in 1990, Hanna filed for personal

bankruptcy.

     During 1991, 1992, and 1993, due to Hanna's poor credit

rating, Associates PC experienced financial difficulties.

Associates PC could not obtain loans to lease additional office

space, acquire office equipment, or expand the law practice.

     In January of 1994, in an effort to improve his law

practice, Hanna entered into discussions with Charles F.

Daily, Jr. (Daily), another Texas lawyer, to combine their

respective law practices.1




1
     Daily is petitioner's lawyer herein.
                               - 3 -

     In February of 1994, the discussions between Hanna and Daily

led to the formation of Mark J. Hanna, P.C. (Hanna PC), as a

Texas professional law corporation.    Daily became sole

shareholder of Hanna PC, and Hanna became president of Hanna PC.

     At the time Hanna PC filed its petition with this Court,

Hanna PC's mailing address was in Austin, Texas.

     On February 2, 1994 (the transfer date), the assets of

Associates PC were transferred to Hanna PC, and Hanna PC assumed

responsibility for the outstanding liabilities of Associates PC

as of the transfer date.

     To effect the transfer of assets and the assumption of

liabilities between Associates PC and Hanna PC, Hanna (as

president of Associates PC and of Hanna PC) executed a document

dated February 2, 1994, entitled “Assignment and Assumption of

Liabilities” (Transfer Document).   The Transfer Document was

poorly drafted.   It described the assets transferred to and

liabilities assumed by Hanna PC only in the most general terms,

and it did not identify the specific dollar amounts or values

represented by the assets transferred and liabilities assumed.2

Also, the Transfer Document did not indicate the total cumulative

amount of the assets transferred to or the liabilities assumed by

Hanna PC.



2
     Herein, the words “amount(s)” and “value(s)” generally are
used interchangeably.
                                - 4 -

     The evidence indicates and we find that on February 2, 1994,

pursuant to the above transfer, the following types of assets of

Associates PC were actually transferred to Hanna PC:         Cash,

accounts receivable, office equipment, an option to purchase a

12-year-old quarter horse (horse option), and an interest in a

contingent fee lawsuit (interest in a lawsuit).

     We also find that Hanna PC assumed the following types of

liabilities of Associates PC:     Notes payable, payroll taxes due,

salaries payable, and accounts payable.

     In connection with the transfer of assets and assumption of

liabilities between Associates PC and Hanna PC, Hanna prepared

what is referred to as an Internal Document listing certain of

Associates PC's assets and liabilities to be transferred and

assumed, setting forth amounts with respect thereto as of January

31, 1994, as follows:


              Associates PC's Assets and Liabilities as of
                  Jan. 31, 1994, per Internal Document

               Assets

                    Cash                        $15,626
                    Accounts Receivable          40,660
                    Office Equipment             15,000
                         Total Assets           $71,286

               Liabilities

                    Notes Payable               $41,211
                    Payroll Taxes Due             6,420
                    Salaries Payable             20,367
                    Accounts Payable             17,382
                         Total Liabilities      $85,380
                                - 5 -

     We note the discrepancies between the types of assets that

actually were transferred from Associates PC to Hanna PC and the

list in the Internal Document of the types of assets to be

transferred (namely, the horse option and the interest in a

lawsuit are not specifically listed in the Internal Document).

     Further, we note that the $40,660 amount listed for accounts

receivable in the Internal Document does not reflect $42,675 in

accounts receivable for legal services rendered by Associates PC

prior to, but not billed by Associates PC before, the February 2,

1994, transfer date and only billed by Hanna PC after the

transfer date.   Also, when Hanna listed the $40,660 amount for

accounts receivable in the Internal Document, he did not make an

adjustment for uncollectible accounts receivable in the amount of

$19,605.

     With regard to the liabilities listed in the Internal

Document, we note that the parties agree that the correct total

amount for notes payable assumed by Hanna PC is $39,821.    The

$17,382 amount listed for accounts payable in the Internal

Document includes $4,282 of liabilities that were attributable

not to expenses of Associates PC but to expenses of Hanna

individually.

     On February 24, 1994, Associates PC dissolved as a

professional law corporation.
                                - 6 -

     On March 15, 1994, Associates PC filed its Federal income

tax return for 1993.

     In 1996, Hanna filed a bankruptcy petition on behalf of

Associates PC and a second personal bankruptcy petition on his

own behalf.

     On February 26, 1997, after an audit, respondent mailed

Associates PC a notice of deficiency determining, among other

things, an income tax deficiency of $31,450 in Associates PC's

1993 Federal income tax liability.

     Also on February 26, 1997, respondent mailed to Hanna PC a

notice of transferee liability in the amount of $25,297 relating

to the $31,450 income tax deficiency for 1993 that respondent had

determined against Associates PC.3


                               OPINION

     Under section 6901(a), a procedure is provided to collect

from a transferee of assets a transferor's tax liability if the

transferee is liable at law or in equity for the transferor's tax

liability.    See Commissioner v. Stern, 357 U.S. 39, 42 (1958)

(interpreting then sec. 311, a predecessor to sec. 6901);

Stansbury v. Commissioner, 104 T.C. 486, 489-490 (1995), affd.


3
     At trial, respondent's agent testified that Hanna PC's
transferee liability under sec. 6901 should be increased to
$28,648. Respondent, however, has not moved to amend his
pleading or asked the Court to increase the deficiency to conform
to the evidence. We decline to consider an increase in Hanna
PC's alleged transferee liability.
                               - 7 -

102 F.3d 1088 (10th Cir. 1996).   In this case, Texas law controls

whether Hanna PC is to be liable for the transferor's tax

liability (namely, whether the transfer from Associates PC to

Hanna PC is to be regarded as a fraudulent transfer under the

Texas Uniform Fraudulent Transfer Act (UFTA)).     UFTA Tex. Bus. &

Com. Code Ann. secs. 24.001 to 24.012 (West 1987 & Supp. 1999);

see Commissioner v. Stern, supra at 45; Hagaman v. Commissioner,

100 T.C. 180, 183 (1993).   Respondent bears the burden of proof

to show that Hanna PC is liable as a transferee, but not to show

that Associates PC was liable for the tax.   See sec. 6902(a);

Rule 142(d).

     Under UFTA section 24.006(a), it is provided that a

transferor engages in a transfer that is fraudulent as to a

creditor if:   (1) The transferor makes a transfer to a

transferee, (2) the creditor has a claim against the transferor

before the transfer is made, (3) the transferor makes the

transfer without receiving reasonably equivalent value, and (4)

the transferor is insolvent at the time of the transfer or is

rendered insolvent as a result of the transfer.4


4
     The language of sec. 24.006(a) of the Texas Uniform
Fraudulent Transfer Act (UFTA), Tex. Bus. & Com. Code Ann.
(West 1987), is provided below:

          A transfer made or obligation incurred by a debtor is
          fraudulent as to a creditor whose claim arose before
          the transfer was made or the obligation was incurred if
          the debtor made the transfer or incurred the obligation
                                                   (continued...)
                               - 8 -

     If all four elements of UFTA section 24.006(a) are present,

a creditor of the transferor, such as respondent herein, may

recover from the transferee an amount equivalent to the lesser of

the amount of the assets transferred to the transferee (reduced

by the amount of assets or rights received by the transferor on

the transfer, if any) or the amount of the creditor's claim.    See

UFTA sec. 24.009(b), (d).

     Hanna PC argues that it was only acting as agent of

Associates PC for the purpose of winding up the affairs of

Associates PC, that the Transfer Document was not a binding

agreement, and that any transfer of assets to Hanna PC did not

constitute a fraudulent transfer under UFTA section 24.006(a).

     UFTA section 24.002(12) contains a broad definition of a

transfer.5   Hanna PC and respondent stipulate that on February 2,

1994, Associates PC transferred all of its assets to Hanna PC,

and the record supports that stipulation.   Hanna PC's argument

that no transfer occurred is meritless.




4
 (...continued)
          without receiving a reasonably equivalent value in
          exchange for the transfer or obligation and the debtor
          was insolvent at that time or the debtor became
          insolvent as a result of the transfer or obligation.
5
     Under UFTA sec. 24.002(12), a transfer is defined as “every
mode, direct or indirect, absolute or conditional, voluntary or
involuntary, of disposing of or parting with an asset or an
interest in an asset”.
                                - 9 -

     With regard to whether a creditor (namely, respondent

herein) had a claim against Associates PC before the transfer

date, Hanna PC argues that respondent's notice of deficiency to

Associates PC was untimely and therefore that respondent did not

have a valid timely claim for a $31,450 Federal income tax

deficiency against Associates PC.

     The record indicates that Associates PC filed its Federal

income tax return for 1993 on March 15, 1994, and that respondent

mailed the notice of deficiency to Associates PC on February 26,

1997.    Under section 6501(a), respondent's notice of deficiency

is timely.    We conclude that respondent had a timely claim of

$31,450 against Associates PC before the transfer date.6

     In order to analyze the third element of UFTA section

24.006(a) (namely, whether Associates PC did not receive

reasonably equivalent value for the transfer of assets to Hanna

PC), we compare the amount of the assets Associates PC

transferred to Hanna PC with the amount of the assets or rights,

if any, that Associates PC received from Hanna PC.    See UFTA sec.

24.004; In re Sullivan, 161 Bankr. 776, 781 (Bankr. N.D. Tex.

1993).    In determining the amount of the assets or rights

received by Associates PC, we treat (as do the parties herein)



6
     Under UFTA sec. 24.002(3), a claim is “a right to payment or
property, whether or not the right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured.”
                                 - 10 -

Hanna PC's assumption of Associates PC's liabilities as a right

received by Associates PC on the transfer.

     Respondent calculates that the amount of the assets

transferred to Hanna PC exceeded the amount of the liabilities

assumed by Hanna PC by $28,648.

     Hanna PC calculates that the amount of the liabilities

assumed by Hanna PC exceeded the amount of the assets transferred

to Hanna PC by $82,231.

     For comparison purposes, we set forth in schedule format

below, respondent's and Hanna PC's respective positions as to the

amounts for the assets of Associates PC transferred to Hanna PC,

for the liabilities of Associates PC assumed by Hanna PC, and for

the total net assets and liabilities transferred and assumed, and

we set forth the differences between the parties' calculations:


         Assets Transferred to and Liabilities Assumed by Hanna PC

                                         Amounts For
 Assets Transferred               Respondent       Hanna PC    Differences
Cash                               $ 15,626        $ 15,626     $      0
Accounts Receivable                  63,730               0*      63,730
Office Equipment                     15,000           4,295       10,705
Horse Option                          4,000           4,000            0
Interest in a Lawsuit                10,000               0       10,000
     Totals                        $108,356        $ 23,921     $ 84,435

Liabilities Assumed
Notes Payable                      $ 39,821        $ 39,821     $      0
Payroll Taxes Due                     6,420           6,420            0
Salaries Payable                     20,367          20,367            0
Accounts Payable                     13,100          39,544       26,444
     Totals                        $ 79,708        $106,152     $ 26,444

Total Net Amount of
     Assets and Liabilities
     Transferred and Assumed       $ 28,648       ($ 82,231)    $110,879

    *At trial and on brief, Hanna PC argued several alternative amounts
     for accounts receivable. In this schedule, we list the lowest amount
     for accounts receivable argued by Hanna PC.
                                - 11 -

     We note that the parties analyze each type of asset and

liability separately.    Also, respondent makes no assertion as to

the amount of any possible goodwill or related intangibles.

There follow our specific findings with regard to the assets and

liabilities the amounts of which are in dispute.    We note

petitioner's failure, other than through self-serving testimony,

to offer on a timely basis any credible evidence as to the value

of most of the assets and liabilities involved in this case.


Accounts Receivable

     We agree with respondent that the accounts receivable should

reflect an amount of $63,730.     This amount represents the $40,660

amount for accounts receivable listed in the Internal Document,

the $42,675 accounts receivable billed by Hanna PC that relate to

legal services performed by Associates PC before the transfer

date, and a $19,605 reduction for uncollectible accounts

receivable.

     Hanna PC argues that because Associates PC was a cash basis

taxpayer, none of Associates PC's accounts receivable should be

included in the calculation of the amount of the assets

transferred.   Whether Associates PC was a cash or an accrual

basis taxpayer, however, has no bearing on the amount of the

assets transferred.     See UFTA sec. 24.004(d).

     Hanna PC also argues that the accounts receivable billed by

Hanna PC represent Hanna's personal property, that therefore the
                                - 12 -

$40,660 amount listed in the Internal Document for accounts

receivable reflects the total amount of Associates PC's accounts

receivable, and that no increase should be made for the $42,675

in accounts receivable billed by Hanna PC.   No credible evidence

supports Hanna PC's argument.

     Alternatively, Hanna PC argues that the $63,730 amount for

accounts receivable determined by respondent should be further

reduced for uncollectible accounts receivable of $18,805 and for

accounts receivable of $1,120 relating to services performed by

Hanna PC after the transfer.    These reductions would result in an

amount of $43,805 for accounts receivable.   The $18,805 reduction

for uncollectible accounts receivable sought by Hanna PC has

already been made by respondent when he reduced the amount of the

accounts receivable by $19,605 for uncollectible accounts

receivable.   No further reduction is appropriate.   The $1,120

reduction that Hanna PC seeks relating to services performed by

Hanna PC is not supported by the evidence.

     Based on the evidence, we conclude that Associates PC's

accounts receivable should reflect an amount of $63,730 as of the

transfer date.
                              - 13 -

Office Equipment

     We disagree with respondent's conclusion that the $15,000

listed in the Internal Document for office equipment represents

the amount of the office equipment on the transfer date.

     Hanna testified that the $15,000 listed in the Internal

Document represents the original cost of the office equipment and

that the actual amount of office equipment transferred was only

$4,295.

     We regard Hanna's testimony as to the amount of the office

equipment to be credible.   Accordingly, we conclude that the

amount of Associates PC's office equipment transferred to Hanna

PC was $4,295.


Interest in a Lawsuit

     Based on Hanna's own testimony, we conclude that the

appropriate amount for the interest in a contingent fee lawsuit

on the transfer date was $10,000, as determined by respondent.

     Hanna PC claims that because Associates PC was a cash basis

taxpayer none of the amount for the interest in a lawsuit should

be reflected in calculating the amount of the assets transferred.

As stated previously, we reject this argument.


Accounts Payable

     We agree with respondent that Associates PC's accounts

payable that were assumed by Hanna PC should reflect only
                                - 14 -

$13,100.   This represents amounts owed to Daily for legal

services Daily rendered to Associates PC.    Although the Internal

Document reflects $17,382 for accounts payable, the evidence

indicates that $4,282 thereof is attributable to liabilities not

of Associates PC and is not related to the transfer of assets

from Associates PC to Hanna PC.

     Hanna PC argues that the amount of Associates PC's accounts

payable is significantly greater than the $13,100 amount

determined by respondent and greater than the $17,382 listed in

the Internal Document.   Hanna PC argues that Associates PC's

total accounts payable assumed by Hanna PC were in the amount of

$39,544, consisting of $13,100 owed to Daily, $22,854 owed to

other professionals for legal expenses, and $3,590 owed to Hanna

for automobile related expenses.

     With regard to Hanna PC's claim that Associates PC's

accounts payable should include $22,854 for legal expenses,

Associates PC's 1996 bankruptcy petition and other documents in

the record indicate that these legal expenses did not constitute

a liability of Associates PC.    No credible evidence supports

Hanna PC's claim that $3,590 in automobile-related expenses

constitutes a liability of Associates PC.

     We conclude that the amount of the assets transferred by

Associates PC to Hanna PC was $97,651, that Hanna PC assumed

Associates PC's liabilities in the amount of $79,708, and that
                                 - 15 -

the total net amount of the assets transferred from Associates PC

to Hanna PC, reduced by liabilities assumed by Hanna PC, was

$17,943, as set forth below:

               Assets Transferred

                      Cash                        $15,626
                      Accounts Receivable          63,730
                      Office Equipment              4,295
                      Horse Option                  4,000
                      Interest in a Lawsuit        10,000
                           Total Assets           $97,651

               Liabilities Assumed

                      Notes Payable               $39,821
                      Payroll Taxes Due             6,420
                      Salaries Payable             20,367
                      Accounts Payable             13,100
                           Total Liabilities      $79,708

               Total Net Amount of
                    Assets and Liabilities
                    Transferred and Assumed       $17,943


     We also conclude that because Associates PC received only

rights worth $79,708 from Hanna PC (namely, Hanna PC's assumption

of Associates PC's liabilities in that amount), Associates PC did

not receive reasonably equivalent value for the transfer of its

assets to Hanna PC.

     With regard to whether Associates PC was insolvent on the

date of the transfer or was rendered insolvent pursuant to the

transfer of its assets to Hanna PC, under UFTA section 24.003(a)

a transferor is rendered insolvent if its liabilities are greater

than its assets after the transfer.       In the instant case,

Associates PC had no remaining assets after the transfer, and

Associates PC had a $31,450 liability to respondent for Federal
                              - 16 -

income taxes.   Under UFTA section 24.003(a), Associates PC is to

be regarded as insolvent after the transfer date.

     Because all four elements of UFTA section 24.006(a) are

present, the transfer from Associates PC to Hanna PC is to be

treated as a fraudulent transfer, and respondent may recover its

$31,450 claim against Associates PC from Hanna PC to the extent

of $17,943.   In light of our conclusion as to Hanna PC's

liability under UFTA section 24.006(a), we hold that section 6901

provides that the $17,943 amount may be assessed, paid, and

collected in the same manner as Associates PC's 1993 Federal

income taxes.

     Other arguments made by the parties and not addressed herein

are without merit.

     To reflect the foregoing,

                                      Decision will be entered

                                 under Rule 155.
