Wells Fargo Petitions Supreme Court To Review Economic Substance Decision

On February 26, 2014, Wells Fargo ("WFC") petitioned the Supreme Court to review the Eighth Circuit's decision in WFC Holdings Corp. v. United States,1 where it held that a lease restructuring transaction lacked economic substance even though it produced nontax economic benefits. The transaction was intended to facilitate a transfer of commercial real estate leases from two WFC subsidiaries to Charter Holdings, Inc. ("Charter"), a non-bank subsidiary. WFC argued that banks are subject to stricter federal regulations on holding interests in real estate than non-banks, so this transfer allowed WFC to earn millions of dollars in additional revenue. Despite these nontax benefits from the lease restructuring transaction, the Eighth Circuit held that Charter's issuance of a new class of preferred stock and WFC's subsequent arm's-length sale of that stock made the entire transaction lack economic substance.

WFC argued that certiorari is warranted because the Eighth Circuit's decision exceeds the limits of the economic substance doctrine in Supreme Court precedent, deepens the split between the circuit courts over whether a transaction that objectively changes a taxpayer's...