Commitments and Contingencies | 9 Months Ended |
Mar. 31, 2014 |
Commitments and Contingencies | ' |
(12) Commitments and Contingencies |
(a) Income Tax Matters |
Internal Revenue Service Audit |
Effective March 31, 2009, we completed the sale of the trust certificate of NC Residuals Owners Trust (the Trust Certificate). In connection with the sale of the Trust Certificate, FMD entered into an asset services agreement (the Asset Services Agreement) pursuant to which FMD provided various consulting and advisory services to the purchaser of the Trust Certificate. As a result of the sale of the Trust Certificate, as well as our operating losses incurred in fiscal 2009, we recorded an income tax receivable for federal income taxes paid on taxable income in prior fiscal years. In fiscal 2010, we received a total of $189.3 million in federal and state income tax refunds related to our income tax receivables. In April 2010, the Internal Revenue Service (IRS) commenced an audit of our tax returns for fiscal 2007 through fiscal 2009, including a review of the tax treatment of the sale of the Trust Certificate and the federal tax refunds previously received in the amount of $176.6 million. Such audits are consistent with the practice of the Joint Committee of Taxation, which requires the IRS to perform additional procedures for a taxpayer who receives a tax refund in excess of $2.0 million, which may include an audit of such taxpayer’s tax return. The IRS is also auditing our fiscal 2010 tax return in light of the $45.1 million income tax refund that we received in October 2010. |
We announced on August 15, 2013 that, as part of the audit process, we expected to receive a Notice of Proposed Adjustment (NOPA) from the IRS. On September 10, 2013 we received two NOPAs from the IRS that contain the proposed adjustments that we announced on August 15, 2013. In the NOPAs, the IRS asserts that our sale of the Trust Certificate should not be recognized for federal income tax purposes primarily because we retained the economic benefits and burdens of the Trust Certificate, including, among other things, retaining certain repurchase rights and data rights. The IRS further concludes that the transaction should be characterized as a financing instead of a sale and asserts that the sale of the Trust Certificate and the execution of the Asset Services Agreement had the impact of converting taxable income to the owner from an accrual basis to a cash basis. As a result, the NOPAs propose to disallow the loss that generated the tax refunds that we previously received as well as require us to include income from the Trust Certificate from the March 31, 2009 sale date through June 30, 2011 in our taxable income for such years. If the IRS’ positions are successful, the disallowance of the loss, coupled with the additional taxable income after the sale date through June 30, 2011, would create federal income tax adjustments that we estimate to be approximately $300.0 million, excluding interest until such matter is resolved. The NOPAs neither address tax years beyond June 30, 2011 nor the assessment of penalties, if any. |
The ongoing IRS audit or any other investigation, audit, appeals proceeding or suit relating to the sale of the Trust Certificate could result in substantial costs. A state taxing authority could also challenge our tax position in connection with the transactions, notwithstanding our receipt of any income tax refund. |
The determination of whether or not to accrue a liability, if any, requires a significant amount of judgment and entails by necessity, the need to incorporate estimates. We have considered the requirements of ASC 740, Income Taxes, and the impact of the NOPAs, along with other information supporting our overall tax position, in our assessment of the ultimate outcome of this matter with the IRS, and based on our analysis, we did not record an accrual related to this matter in our unaudited consolidated financial statements at March 31, 2014. Such an accrual, if it becomes necessary, could be significant and material to our consolidated financial statements. |
We are vigorously contesting the proposed adjustments, and we believe we have a strong position as it relates to this matter; however, we cannot predict the timing or the outcome of the IRS audit. The process of resolving this issue, which may include an appeals process with the IRS and litigation in the U.S. Tax Court and the U.S. Court of Appeals, may extend over multiple years depending on how it progresses through the IRS and, if necessary, the courts. Assuming this matter advances unresolved through the IRS’ administrative process and the courts, we are not required to make tax payments, if any, until the matter is fully resolved, which may be several years from now. However, if we receive an unfavorable outcome from the U.S. Tax Court and appeal, we must post a bond in order to prevent collection of the tax deficiency. |
Massachusetts Appellate Tax Board Matters |
We are involved in several matters relating to the Massachusetts tax treatment of GATE Holdings, Inc. (GATE), a former subsidiary of FMD. We took the position in proceedings before the Massachusetts Appellate Tax Board (ATB) that GATE was properly taxable as a financial institution and not as a business corporation and was entitled to apportion its income under applicable provisions of Massachusetts tax law. The Massachusetts Commissioner of Revenue (Commissioner) took alternative positions: that GATE was properly taxable as a business corporation, or that GATE was taxable as a financial institution, but was not entitled to apportionment or was subject to 100% Massachusetts apportionment. In September 2007, we filed a petition with the ATB seeking a refund of state taxes paid for our taxable year ended June 30, 2004, all of which taxes had previously been paid as if GATE were a business corporation. In December 2009, the Commissioner made additional assessments of taxes, along with accrued interest, of approximately $11.9 million for GATE’s taxable years ended June 30, 2004, 2005 and 2006, and approximately $8.1 million for our taxable years ended June 30, 2005 and 2006. For the 2005 and 2006 taxable years, only one of the two assessments made by the Commissioner would ultimately be allowed. In March 2010, we filed petitions with the ATB contesting the additional assessments against GATE and us. In April 2011, the ATB held an evidentiary hearing on the foregoing, and the parties filed their final briefs in September 2011. On November 9, 2011, the ATB issued an order (ATB Order) regarding these proceedings. The ATB Order reflected the following rulings and findings: |
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| • | | GATE was properly taxable as a financial institution, rather than a business corporation, for each of the tax years at issue; |
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| • | | GATE was entitled to apportion its income under applicable provisions of Massachusetts tax law for each of the tax years at issue; |
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| • | | GATE properly calculated one of the two applicable apportionment factors used to calculate GATE’s financial institution excise tax; |
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| • | | GATE incorrectly calculated the other apportionment factor, which we refer to as the Property Factor, by excluding all income from trust-owned education loans outside of Massachusetts rather than including such income for the purposes of GATE’s Massachusetts state tax returns; and |
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| • | | All penalties assessed to FMD and GATE were abated. |
In connection with the ATB Order, as well as the expiration of the statute of limitations applicable to GATE’s taxable year ended June 30, 2007, we recognized an income tax benefit of $12.5 million during the second quarter of fiscal 2012. In the third quarter of fiscal 2012, we made a $5.1 million payment that satisfied our obligation to the Massachusetts Department of Revenue for GATE’s taxable years ended June 30, 2004, 2005 and 2006. |
On April 17, 2013, the ATB issued its opinion confirming the rulings and findings included in the ATB Order (the ATB Opinion). We had argued that the loan servicers’ activities, which were conducted outside of Massachusetts on behalf of the trusts, determined the location of the loans for purposes of the Property Factor. The ATB disagreed and determined that the loan servicers’ activities should not be attributed to GATE and further determined that, for purposes of the Property Factor, the trust-owned education loans were located in Massachusetts, GATE’s commercial domicile and, therefore, were subject to 100% Massachusetts apportionment. |
On July 22, 2013, we filed an appeal of the ATB’s findings with regard to the Property Factor in the Massachusetts Appeals Court. The Commissioner has decided not to appeal the ATB’s other findings. On December 18, 2013, the Massachusetts Supreme Judicial Court (SJC) notified us that it had elected to hear our appeal of the ATB’s findings and, as a result, our appeal will not be heard by the Massachusetts Appeals Court. The SJC has not set a date for the hearing for our appeal. If we are unsuccessful in an appeal of the ATB Order, we could be required to make additional tax payments, including interest, as discussed below, for GATE’s taxable years ended June 30, 2008 and 2009, which could materially adversely affect our liquidity position. |
On August 6, 2013, the Massachusetts Department of Revenue delivered a notice of assessment for our taxable years ended June 30, 2008 and 2009. This assessment included approximately $822 thousand of additional tax liability and an assessment for penalties of $4.1 million. We accrued for the additional tax liability, including interest, in fiscal 2013 but have not accrued for the penalties as we believe that it is more likely than not that the penalties will ultimately be abated, which is consistent with the Massachusetts Department of Revenue’s treatment of our taxable years ended June 30, 2004, 2005 and 2006. As of March 31, 2014, we had accrued a total of $25.7 million, including interest, related to the 2008 and 2009 tax returns for GATE, which amount was included in income taxes payable on our consolidated balance sheet. On August 26, 2013, we filed an application to have the assessed amounts abated in full. On March 26, 2014, the Massachusetts Department of Revenue denied our application. We plan to file an appeal on this matter with the ATB. We expect the outcome for the 2008 and 2009 tax years to be influenced by the SJC’s decision on our appeal of the ATB’s findings. We cannot predict the outcome of this matter or the timing of such payments, if any, at this time. |
It is reasonably possible that our liability for this uncertain tax benefit may increase or decrease within the next 12 months primarily due to the SJC’s decision to hear our appeal. However, we cannot reasonably estimate a range of potential changes in such benefit as the outcome of the appeal is subject to uncertainty. |
(b) Federal Class Action Lawsuits |
On August 28, 2013, a purported class action was filed in the United States District Court for the District of Massachusetts against FMD, Daniel Meyers, FMD’s Chief Executive Officer and Chairman of the FMD Board of Directors, and Kenneth Klipper, FMD’s Chief Financial Officer and one of FMD’s Managing Directors. The action is entitled Smith v. The First Marblehead Corp. et al., Civ. A. No. 13-cv-12121-PBS (D. Mass.). The plaintiff alleges, among other things, that the defendants made false and misleading statements and failed to disclose material information in various SEC filings, press releases and other public statements concerning our corporate income tax filings. The complaint alleges various claims under the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The complaint seeks, among other relief, class certification, unspecified damages, fees and such other relief as the court may deem just and proper. In December 2013, the court appointed a lead plaintiff and lead counsel. On February 20, 2014, an amended complaint was filed by the lead plaintiff and contained similar allegations as the earlier complaint. On April 7, 2014, we filed a motion to dismiss the amended complaint. Plaintiff’s opposition to our motion to dismiss is due to be filed in May 2014. A class has not been certified in the action as of May 8, 2014. |
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On October 23, 2013, a different plaintiff filed a related derivative action in the same court against Daniel Meyers, Kenneth Klipper and current or former members of FMD’s Board of Directors Peter Drotch, George Daly, William Hansen, Thomas Eddy, Dort Cameron III, Nancy Bekavac, Stephen Anbinder, Peter Tarr, William Berkley, and Henry Cornell. The action is entitled Noel v. Daniel Meyers, et al., Civ. A. No. 13-cv-12683-PBS (D. Mass.). The plaintiff alleges, among other things, that the defendants breached their fiduciary duties to FMD by making, or not preventing, purported false and misleading statements concerning FMD’s corporate income tax filings. The plaintiff also asserts claims for unjust enrichment and corporate waste. The complaint seeks, among other relief, a return of all damages purportedly sustained by FMD as well as changes to corporate governance policies and procedures. On January 23, 2014, this action was stayed pending the resolution and disposition of the Smith action. |
The defendants in each action intend to vigorously defend themselves. There can be no assurance, however, that the defense will be successful, and adverse developments and/or an adverse resolution of either lawsuit could have a material effect on our consolidated financial position and results of operations. In addition, the costs associated with the defenses will be incurred by FMD. We are not presently able to estimate potential losses, if any, related to the lawsuits and, although we carry insurance for these types of claims, a judgment significantly in excess of our insurance coverage could be material to our consolidated financial statements. |
(c) NC Residuals Owners Trust Litigation |
On April 2, 2014, FMD filed a complaint in the Delaware Court of Chancery against NC Residuals Owners Trust (NC Residuals) and The Wilmington Trust Company in its capacity as owner trustee (the Owner Trustee) of certain of the securitization trusts that we previously facilitated (the GATE Trusts). The action is entitled The First Marblehead Corporation v. NC Residuals Owners Trust, et. al., C.A. No. 9500-VCN, and seeks declaratory relief and specific performance. |
GATE, a former subsidiary of FMD, was the owner of certain beneficial interests in the GATE Trusts as well as certain beneficial interests in certain other securitization trusts that we previously facilitated (the NCSLT Trusts). GATE assigned and transferred all of its interests in the GATE Trusts to FMD pursuant to a transfer and assignment agreement. After the transfer of its interests in the GATE Trusts to FMD, GATE’s remaining assets consisted of its interests in the NCSLT Trusts and it was statutorily converted into NC Residuals and, immediately thereafter, the Trust Certificate was sold. |
As of July 2013, the Owner Trustee had not received documentation required to transfer ownership on the records of the Owner Trustee of the GATE Trusts to FMD and the Owner Trustee’s books and records still reflected that GATE was the beneficial owner of the GATE Trusts. FMD requested that NC Residuals, as successor to GATE, execute certain documents necessary to cause FMD to become properly reflected as the GATE Trusts’ registered owner in the Owner Trustee’s books and records, in accordance with NC Residuals’ obligations under the transfer and assignment agreement. NC Residuals has refused to comply with FMD’s request and has claimed ownership of the GATE Trusts and has also demanded that FMD deliver to it trust certificates reflecting ownership of the GATE Trusts and all cash distributions received on or after March 31, 2009 related to the GATE Trusts. |
From 2009 until late 2013, FMD received regular cash distributions as the beneficial owner of the GATE Trusts and has continually reflected the GATE Trusts on its consolidated balance sheets. As of March 31, 2014, the value of the GATE Trusts on our consolidated balance sheet was $12.1 million and, through March 31, 2014, the GATE Trusts had generated cash distributions of $5.0 million, of which $1.3 million is currently being withheld. |
We are vigorously pursuing all of our claims in this matter. There can be no assurance, however, that our claims will be successful, and adverse developments and/or an adverse resolution could have a material adverse effect on our consolidated financial position and results of operations. |
(d) Indemnifications—Sale of FMDS |
In connection with the sale of our trust administrator, First Marblehead Data Services, Inc. (FMDS), in the third quarter of fiscal 2012, we have agreed to indemnify the buyer for breaches of representations, warranties and covenants, subject to certain terms, conditions and exceptions. |
The buyer’s rights to indemnification with respect to breaches of certain of our representations and warranties in the purchase agreement (the Fundamental Representations) are subject to a cap equal to the purchase price. The Fundamental Representations include representations and warranties by FMD with regard to its organization, its authorization of the transaction, the absence of broker’s fees and its ownership of the shares of capital stock of FMDS. The Fundamental Representations also include representations and warranties by FMD with regard to FMDS’ organization, qualification and corporate power, FMDS’ capitalization, the absence of broker’s fees, the absence of subsidiaries and certain tax matters. |
The buyer’s rights to indemnification would not be subject to the purchase price cap in the case of any breach or nonperformance by us of any of our covenants or obligations set forth in the purchase agreement. In addition, we have agreed to provide a separate, unconditional indemnity with regard to tax matters related to FMDS arising prior to the closing date, including the audit currently being conducted by the IRS, as discussed above. This special indemnity is also not subject to the purchase price cap. Finally, we have agreed to indemnify and defend the buyer from certain other specified matters. The buyer’s rights to such indemnification would be initially capped at the purchase price, and the applicable cap would then decrease over time. We believe that at the time of the sale of FMDS and at our consolidated balance sheet dates, the likelihood of making any payment under these indemnifications was remote. As such, the fair value of any such liability for the indemnifications would, therefore, also be immaterial to our consolidated financial statements. |
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(e) Performance Guaranty |
In connection with Union Federal’s sale of an education loan portfolio in October 2009, FMD delivered a performance guaranty pursuant to which FMD guarantees the performance by Union Federal of its obligations and agreements, including its indemnification or loan repurchase obligations, under the loan purchase and sale agreement relating to the transaction. We were not aware of any contingencies existing at our consolidated balance sheet dates that were both probable and estimable for which we would record a reserve, nor can we estimate a range of possible losses at this time. |
(f) Indemnifications—Union Federal |
In April 2010, FMD and certain of its subsidiaries entered into agreements relating to the restructuring of the education loan warehouse facility of FMD’s indirect subsidiary, UFSB Private Loan SPV, LLC. In connection with the restructuring, FMD agreed, among other things, to provide a separate indemnity for third-party claims by or on behalf of borrowers against the third-party conduit lender based on loan origination errors under the facility. We were not aware of any contingencies existing at our consolidated balance sheet dates that were both probable and estimable for which we would record a reserve, nor can we estimate a range of possible losses at this time. |
(g) Indemnifications—Citizens Loan Sale |
On January 23, 2014, FMD and Union Federal entered into a loan purchase and sale agreement with Citizens. Pursuant to the loan purchase and sale agreement, Union Federal agreed to sell to Citizens a portfolio of education loans with an aggregate outstanding principal balance of approximately $53.9 million as of December 31, 2013 as long as such loans continue to meet the eligible loan criteria in the loan purchase and sale agreement. |
On March 28, 2014, Union Federal sold to Citizens, in the first of what is expected to be two closings, education loans from the portfolio with an aggregate outstanding principal balance of approximately $39.8 million. Union Federal received $43.1 million in sale proceeds, which was equal to 103.5% of the aggregate outstanding principal balance plus all accrued but unpaid interest of the purchased loans as of the calendar day immediately preceding the purchase date. |
Subject to certain exceptions, Union Federal has agreed to repurchase, following receipt of notice from Citizens, any education loan for which a representation or warranty made by Union Federal about such loan proves to have been false, misleading or incorrect as of the effective date of the loan purchase and sale agreement or as of the applicable closing date. Union Federal has also agreed to repurchase any education loan that becomes subject to a formal judicial proceeding that is based upon the acts or omissions of Union Federal or its agents or affiliates arising prior to the applicable closing date and, under certain circumstances, any education loan where a claim has been made that the education loan is unenforceable because of the lack of contractual capacity of a minor. These repurchase obligations do not expire and are in addition to FMD’s indemnification obligations discussed below. |
In addition, FMD agreed to guarantee to Citizens the full and prompt performance by Union Federal of its obligations and agreements, including its loan repurchase obligations discussed above, under the loan purchase and sale agreement. FMD also agreed to indemnify Citizens against losses sustained as a result of any breach of Union Federal’s representations, warranties and covenants or any act or omission of Union Federal prior to the applicable closing date for each sale. |
We were not aware of any contingencies existing at March 31, 2014 that were both probable and estimable for which we would record a reserve, nor can we estimate a range of possible losses at this time. |
(h) Other |
We are involved from time to time in routine legal proceedings occurring in the ordinary course of business. In the opinion of management, there are no matters outstanding, other than those discussed above under “—Income Tax Matters,” “—Federal Class Action Lawsuits” and “—NC Residuals Owners Trust Litigation,” that could have a material adverse impact on our operations or financial condition. |