Commitments and Contingencies | 9 Months Ended |
Mar. 31, 2015 |
Commitments and Contingencies | (9) 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. Furthermore, we received a federal income tax refund of $45.1 million in October 2010 related to the operating losses in fiscal 2010, which we applied to taxable income from fiscal 2008. 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 refund previously received in the amount of $176.6 million. Such audits are required by the Internal Revenue Code. The IRS also commenced an audit of our fiscal 2010 tax return in light of the $45.1 million income tax refund that we received in October 2010. |
On September 10, 2013, we received two Notices of Proposed Adjustment (NOPAs) from the IRS. In the NOPAs, the IRS asserted 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 concluded that the transaction should be characterized as a financing instead of a sale and asserted 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 proposed 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. |
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On December 18, 2014, the IRS informed us that it is no longer challenging the federal tax refunds we previously received in the amounts of $176.6 million and $45.1 million. The IRS has provided us with its final examination report confirming that the refunds were correct and we do not owe additional tax. The IRS’s decision not to challenge these federal tax refunds is subject to the review of the Joint Committee on Taxation, as is required for all refunds in excess of $5.0 million. On April 2, 2015, the IRS submitted its final examination report to the Joint Committee on Taxation. |
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, the IRS’s decision to not challenge the federal tax refunds we previously received and the review of this decision by the Joint Committee on Taxation, 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 as of March 31, 2015. Further, as a result of the IRS’s decision to not challenge the federal tax refunds we previously received, we believe the likelihood of loss related to this contingency is remote. |
Massachusetts Appellate Tax Board Matters |
GATE Holdings, Inc. Taxable Years Ended June 30, 2004, 2005 and 2006 |
We are involved in several matters relating to the Massachusetts tax treatment of GATE Holdings, Inc. (GATE), a former subsidiary of FMD. On November 9, 2011, the Massachusetts Appellate Tax Board (ATB) issued an order (ATB Order) regarding these proceedings. 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 January 28, 2015, the Massachusetts Supreme Judicial Court (SJC) issued its opinion in the cases relating to the Massachusetts tax treatment of GATE for GATE’s taxable years ended June 30, 2004, 2005 and 2006. The SJC affirmed the decision of the ATB. At this time, we are not required to make any additional payments to the Massachusetts Department of Revenue for GATE’s taxable years ended June 30, 2004, 2005 and 2006. In affirming the ATB, the SJC’s opinion interpreted the controlling statute in a manner that is inconsistent with the ATB’s interpretation, as well as the interpretations advocated by both GATE and the Massachusetts Commissioner of Revenue (Commissioner) in their briefs. We believe the SJC’s statutory analysis is incorrect. On February 11, 2015, we filed a petition for rehearing on this matter with the SJC, which was denied by the SJC on March 2, 2015. We expect to file a petition for a writ of certiorari with the Supreme Court of the United States. The petition is due on June 1, 2015. |
Background |
We took the position in these cases 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 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. |
On November 9, 2011, the ATB issued the 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. |
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On April 17, 2013, the ATB issued its opinion confirming the rulings and findings included in the ATB Order. On July 22, 2013, we filed an appeal of the ATB’s findings with regard to the Property Factor in the Massachusetts Appeals Court. On December 18, 2013, the SJC notified us that it had elected to hear our appeal of the ATB’s findings and heard arguments on the appeal on October 7, 2014. On January 28, 2015, the SJC issued its opinion affirming the decision of the ATB. |
GATE’s Taxable Years Ended June 30, 2008 and 2009 |
On August 6, 2013, the Massachusetts Department of Revenue delivered a notice of assessment for GATE’s taxable years ended June 30, 2008 and 2009, which included an assessment for penalties of $4.1 million. We 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 GATE’s taxable years ended June 30, 2004, 2005 and 2006. 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. While we have filed an appeal on this matter with the ATB, it is on hold pending resolution of the petition for a writ of certiorari we expect to file with the Supreme Court of the United States related to GATE’s taxable years ended June 30, 2004, 2005 and 2006. The SJC’s opinion in the cases related to GATE’s taxable years ended June 30, 2004, 2005 and 2006 may influence the outcome of our appeal for the taxable years ended June 30, 2008 and 2009. |
We plan to vigorously pursue the litigation pending before the ATB in the cases pertaining to GATE’s taxable years ended June 30, 2008 and 2009. If we are unsuccessful in this litigation, we could be required to make additional tax payments, including interest for GATE’s taxable years ended June 30, 2008 and 2009, which could materially adversely affect our liquidity position. As of March 31, 2015, we had accrued a total income tax liability of $26.4 million, including interest, related to GATE’s tax returns for the taxable years ended June 30, 2008 and 2009, which amount was included in income taxes payable on our consolidated balance sheet. 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 change within the next 12 months depending on the outcome of the litigation pending before the ATB in the cases pertaining to GATE’s taxable years ended June 30, 2008 and 2009. As of March 31, 2015, the range of potential change in our liability, excluding an assessment for penalties, was $0 to $26.4 million. |
(b) NC Residuals Owners Trust Litigation |
On April 2, 2014, FMD filed a complaint in the Delaware Court of Chancery (the Chancery Court) 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. |
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 of the 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. As part of that agreement, GATE agreed to, among other things, execute and deliver all documents that might be necessary to transfer, assign and deliver to and vest in FMD ownership of the GATE Trusts on the records of the Owner Trustee. 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. |
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, 2015, the value of the GATE Trusts on our consolidated balance sheet was $11.5 million and, through March 31, 2015, the GATE Trusts had generated cash distributions of $7.4 million, of which $3.7 million is currently being withheld by the administrator of the GATE Trusts pending resolution of this dispute. 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 refused to comply with FMD’s request and has claimed ownership of the GATE Trusts and 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. |
FMD and NC Residuals agreed to submit this matter to non-binding mediation, and the Chancery Court entered an order at the parties’ request staying the litigation pending completion of the mediation. On December 22, 2014, FMD and NC Residuals reached an agreement in principle to settle this matter. As part of the settlement, NC Residuals will release any and all claims of ownership of the GATE Trusts, including, without limitation, any and all claims to the cash distributions, and will cooperate with FMD to transfer ownership on the records of the Owner Trustee of the GATE Trusts to FMD, including, without limitation, executing any documents necessary to cause FMD to become properly reflected as the GATE Trusts’ registered owner in the Owner Trustee’s books and records. FMD and NC Residuals are currently documenting the settlement to reflect the agreed-upon terms. As of March 31, 2015, we had an accrued liability of $5.0 million related to the settlement of this matter, which amount was included in accrued expenses on our consolidated balance sheet. |
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(c) Indemnifications—Citizens Loan Sales |
On January 23, 2014, FMD and Union Federal entered into a loan purchase and sale agreement with RBS Citizens, N.A. (Citizens). Pursuant to the loan purchase and sale agreement, on March 28, 2014, Union Federal sold to Citizens a portfolio of education loans with an aggregate outstanding principal balance of approximately $39.8 million. On June 25, 2014, FMD and Union Federal entered into a new loan purchase and sale agreement with Citizens. Pursuant to the loan purchase and sale agreement, on June 25, 2014, Union Federal sold to Citizens a portfolio of education loans with an aggregate outstanding principal balance of approximately $19.2 million. |
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 applicable effective dates of the loan purchase and sale agreements or as of the applicable closing dates. 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 agreements. 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 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. |
(d) 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,” that could have a material adverse impact on our operations or financial condition. |