The California Fourth District Court of Appeal adopted the principle that:

it is inherently unreasonable for any person to rely on a prediction of future IRS enactment, enforcement, or non-enforcement of the law by someone unaffiliated with the federal government. As such, the reasonable reliance element of any fraud claim based on these predictions fails as a matter of law,” citing Berry v. Indianapolis Life Insurance Co.

In Brakke v. Economic Concepts, Inc., the trustee of a defined benefit plan and the principals of the company that established it brought suit against American General Life Insurance Company, Economic Concepts, Inc. and others for alleged fraud. The plaintiffs alleged they were induced to establish the pension plan by false representations that contributions to the plan were tax deductible under the Internal Revenue Code. Years after the plan was established, the Internal Revenue Service made an adverse ruling that the pension plan did not qualify for favorable tax treatment and required plaintiffs to pay back taxes and penalties.

The dispositive issues were whether defendants’ statements were actionable misrepresentations and if so, whether plaintiffs could establish reasonable reliance. The trial court sustained a demurrer without leave to amend.

On a purely factual basis, the appellate court noted inconsistencies between allegations in the complaint and exhibits to the complaint concerning the representations. More importantly, the representations were made and the plan was established in 2002-2003, whereas the IRS did not rule until 2006. This led the court to conclude that plaintiffs failed to allege the statements by defendants were false when made.

Equally fatal to plaintiffs’ position was the court’s reference to and reliance upon the Berry decision quoted above, albeit non-controlling, and analogous case law in California such as Holder v. Home Sav. & Loan Assn. (1968) (“statements with regard to future assessments or levies of taxes … made by a private person ... may not justifiably be relied on.”). The rationale in Holder was that:

“[t]he fixing of assessed values of property and of tax rates is solely within the power of public officials, whose decisions are not and should not be subject to control by a property owner.”

As a result, the Fourth District affirmed dismissal of the entire case.

Potential plaintiffs in comparable circumstances will need to find a more creative way around the court’s straightforward directive:

[I]t simply was not reasonable for plaintiffs to rely on representations concerning how the IRS would treat their pension plan in the future.”