Donald Kipnis, et al v. Bayerische Hypo-Und Vereinsban, et al

Filing

Opinion issued by court as to Appellants Lawrence Kibler, Donald Kipnis and Kenneth A. Welt. Decision: Reversed and Remanded. Opinion type: Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-11959

Date Filed: 12/22/2016

Page: 1 of 4

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11959
________________________
D.C. Docket No. 1:13-cv-23998-CMA

DONALD KIPNIS,
LAWRENCE KIBLER,
KENNETH A. WELT
As Chapter 7 Trustee of the Estate of Donald Kipnis,
Plaintiffs-Appellants,
versus
BAYERISCHE HYPO-UND VEREINSBANK, AG,
a corporation,
a.k.a. Unicredit Bank AG,
HVB U.S. FINANCE, INC.,
n.k.a. Unicredt U.S. Finance, Inc.
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 22, 2016)

Case: 14-11959

Date Filed: 12/22/2016

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Before HULL, BLACK and MELLOY, * Circuit Judges.
PER CURIAM:
The facts of this case are more fully set out in this Court’s prior opinion.
See Kipnis v. Bayerische Hypo-Und Vereinsbank, AG, 784 F.3d 771 (11th Cir.
2015). By way of brief review, the plaintiffs and defendants Bayerische HypoUnd Vereinsbank, AG and HVB U.S. Finance, Inc. (collectively, “HVB”)
participated in a tax-shelter scheme known as CARDS. Id. at 773-75. The
CARDS transaction at issue took place from December 2000 until December 2001.
Id. at 774-76.
In October 2007, after HVB publicly admitted fault for participating in
CARDS schemes, the Internal Revenue Service (“IRS”) issued notices of tax
deficiency to the plaintiffs. Id. at 776. On November 1, 2012, the United States
Tax Court issued a decision against the plaintiffs, concluding, inter alia, that the
CARDS transaction they had engaged in “lacked economic substance.” Id. at 77677.
On November 4, 2013, the plaintiffs filed a diversity complaint against HVB
in federal district court, raising various state-law claims and alleging that HVB and
its co-conspirators defrauded them by promoting and selling CARDS transactions
for their own financial gain. Id. at 773, 777. The district court dismissed the
*

Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
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Case: 14-11959

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complaint as barred by Florida’s four- and five-year statutes of limitation. Id. at
777-78. On appeal, we certified the following question to the Florida Supreme
Court:
UNDER FLORIDA LAW AND THE FACTS IN THIS CASE, DO
THE CLAIMS OF THE PLAINTIFF TAXPAYERS RELATING TO
THE CARDS TAX SHELTER ACCRUE AT THE TIME THE IRS
ISSUES A NOTICE OF DEFICIENCY OR WHEN THE
TAXPAYERS’ UNDERLYING DISPUTE WITH THE IRS IS
CONCLUDED OR FINAL?
Id. at 783.
In response, the Florida Supreme Court held that “the plaintiff taxpayers’
claims accrued at the time their action in the tax court became final. That action
became final ninety days after the tax court’s judgment, at the expiration of the
time period for an appeal of that judgment.” Kipnis v. Bayerische Hypo-Und
Vereinsbank, AG, 202 So. 3d 859, No. SC15-740, 2016 WL 6539470, at *1 (Fla.
Nov. 3, 2016); see also id. at *8 (holding that the plaintiff taxpayers’ “claims
accrued at the time their action in the tax court became final, following expiration
of the ninety-day time period for appealing the tax court’s judgment”).
In light of the Florida Supreme Court’s response, we conclude that the
district court erred in dismissing the plaintiffs’ complaint as time-barred. Under
the Florida Supreme Court’s interpretation, the applicable statutes of limitation did
not begin to run until January 30, 2013, which is 90 days after the tax court’s
November 1, 2012 judgment. Therefore, the plaintiffs’ complaint, filed on
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November 4, 2013, was timely. We reverse the district court’s judgment and
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.

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