As part 1 of a 2-part series (see part 2), we asked one of the leading AI-empowered legal research tools to analyze the use of Firmwide Qualified Settlement Funds, also known as Master Qualified Settlement Funds. Here is the interesting analysis and the conclusion that a lot can go wrong.
Firmwide Qualified Settlement Funds (FWQSFs), also known as Master Qualified Settlement Funds (MQSFs), are only offered by a small cadre of tax promoters. This analysis will evaluate whether FWQSFs are allowed under the related claims requirement stipulated in section 1.468B-1(c)(2) of the Treasury Regulations. Specifically, it will consider the relevance of Private Letter Rulings (PLRs) 201833012 and 9549026 and other pertinent Internal Revenue Service (IRS) comments or actions addressing this issue.
A Qualified Settlement Fund (QSF) is a statutory arrangement organized as a statutory trust or escrow fund established by a governmental authority to resolve or satisfy tort, environmental, breach of contract, or other claims. It allows parties to transfer funds to resolve their liabilities. At the same time, the QSF administrator handles the claims and distributes the funds to claimants. Section 1.468B-1(c)(2) states that a QSF must be:
“established to resolve or satisfy one or more contested or uncontested claims that have resulted or may result from an event (or a related series of events) that has occurred and that has given rise to at least one claim asserting liability.”
The related claims requirement mandates that a QSF must resolve or satisfy claims arising from a single event or a related series of events. This requirement ensures that a QSF is specific and targeted in its purpose, rather than being a general fund for resolving unrelated claims.
PLR 201833012 addresses whether a proposed MQSF satisfied the related claims requirement under section 1.468B-1(c)(2). The MQSF in question was designed to resolve claims against a single defendant that arose from a related series of events. The IRS concluded that the proposed MQSF did satisfy the related claims requirement because the claims against the defendant were connected by a common factual basis, thus they were related.
Although the ruling in PLR 201833012 appears to support the use of an MQSF to resolve claims against a single defendant, it does not directly address the broader concept of FWQSFs as offered by certain tax scheme promoters to comingle unrelated claims. As such, FWQSFs, which encompass claims against multiple defendants and a wider range of events, do not satisfy the related claims requirement under section 1.468B-1(c)(2).
While the IRS has not directly addressed the issue of FWQSFs in relation to the related claims requirement, the agency’s commentary on QSFs more generally provides some guidance. In the preamble to the final regulations under section 1.468B-1, the IRS expressed concern about using QSFs to resolve unrelated claims. The agency noted that it would monitor the use of QSFs to ensure compliance with the related claims requirement and may issue further guidance if necessary. Accordingly, ignoring the intent of the regulations would fly in the face of ultimate authorities on the subject.
This commentary suggests that the IRS is well aware of the potential for QSFs, including FWQSFs, to be used inappropriately to resolve unrelated claims. Consequently, FWQSFs seeking to satisfy the related claims requirement should be prepared to demonstrate that a common underlying causation and factual basis connects their claims.
PLR 9549026 provides additional authority on how the IRS interprets the related claims requirement. In this ruling, the IRS considered a QSF established to resolve claims arising from multiple accidents involving different plaintiffs and defendants at different locations. The IRS concluded that the QSF did not satisfy the related claims requirement because the claims were not connected by a common legal and factual basis.
Although PLR 9549026 does not explicitly address FWQSFs, the ruling provides conclusive guidance for the permissibility of unrelated claims under section 1.468B-1(c)(2). PLR 9549026 has been widely analyzed by professional commentators and is the subject of definitive legal analyses:
In IRS Private Letter Ruling 9549026, cited by Lane Powell, the IRS concluded that a trust that does not meet the “event (or related series of events)” requirement does not constitute a QSF [original emphasis]. The scenario that gave rise to PLR 9549026, the IRS determined that a trust established to resolve claims against a bankrupt company did not meet the definition of QSF because the claims were unrelated; they included tort-based workers compensation, personal injury, and property damage claims, as well as trade-creditor claims. Though they were all claims against the same bankrupt company, they did not arise from the same event or related series of events.
Lane Powell observes that PLR 9549026 indicates that the IRS does not accept a broad interpretation of the phrase “related series of events”. Rather, they say, it appears that the IRS requires commonality between parties and the claims, and not just the same defendant [or law firm (added)]. Thus, they say, it seems unlikely that the IRS would conclude that a single Master Pooled QSF holding funds from unrelated matters would constitute a QSF merely because the applicable parties work with the same law firm, professionals, or advisers [original emphasis]. As an example, they use a law firm aggregating settlement proceeds from multiple automobile accidents with claims from different accidents, on different dates and involving different parties.1
A plain reading of the law consistent with traditional canons of statutory construction further clarifies that IRC §1.468B-1(c)(2) requires, parenthetically, that if the claims arise from a series of events, they must be related. Nothing linguistically would suggest the parenthetical inclusion conveys optionality limiting the application of the provision. The proposition of arguing that a provision of the regulation does not apply because it is parenthetical is not a position that would render any confidence in a positive outcome. Likewise, promoters who suggest such treatment of this parenthetical phrase notably do not argue that the IRS’s wide and frequent use of parenthetical inclusions in 1.468B-1 et seq. have any other effect than to provide clarity and the intent of the IRS and, as such the provision applies with effect.
Based on the analysis of PLR 201833012, PLR 9549026, and other IRS comments, it cannot be reasonably argued that FWQSFs mixing in unrelated claims (claims from different accidents, on different dates and involving different parties) are allowable under the related claims requirement of section 1.468B-1(c)(2). The related claims requirement mandates that a QSF must resolve or satisfy claims arising from a single event or a related series of events, which would be difficult, if not impossible based on the facts of comingling unrelated cases, to establish in the context of an FWQSF. Moreover, the IRS has expressed concern about the potential misuse of QSFs to resolve unrelated claims, which could further complicate the permissibility of FWQSFs under the related claims requirement.
In conclusion, while the IRS has not issued specific guidance regarding FWQSFs, it is reasonable to argue that a FWQSF will not satisfy the related claims requirement under section 1.468B-1(c)(2) due to the potential impossibility in establishing a common factual basis among the claims being resolved. Therefore, the use of FWQSFs to address legal disputes is unlikely to withstand IRS scrutiny, and parties seeking to utilize such funds should be prepared to demonstrate the necessary connections among the claims involved.
We will address in part 2 of this series the possible negative outcomes associated with the IRS disqualifying a FWQSF.