47. On Friday night, April 28, 1978, Thevis escaped from custody in New Albany, Indiana, and remained a fugitive until his capture in Connecticut on November 9, 1978. He has since remained in federal custody. The instruments that Thevis executed during April 26-28, 1978, he signed in contemplation of that escape.
48. On June 10, 1978, Mr. Thevis, Global, Fidelity and others were indicted on various federal criminal charges including RICO offenses in this Court in Criminal No. 78-180A (Fidelity was subsequently acquitted).
49. Subsequent to that indictment, and after an order of this Court, the United States released to counsel for Global a copy of the lengthy statement given to the Government by witness Roger Underhill. At the time of his later capture, Mr. Thevis had in his possession a copy of the Underhill statement, which copy was itself a copy of the document provided to Global.
50. At the time large jeopardy assessments were made on August 9, 1978, against Fidelity, Global, and Thevis, and a notice of federal tax lien was duly recorded against Global in the Fulton County land records on August 10, 1978, Global owned and had its chief offices at 267 Marietta Street, Atlanta, Georgia. A senior deed to secure debt on those premises was held by the Federal Deposit Insurance Corporation, as successor to Hamilton Bank and Trust Company. A second deed to secure debt was held by Georgia Ann Harmon, as trustee of the alimony trust, and as assignee of Michael Thevis, to secure Fidelity's obligation to him.
51. During 1976 through 1978, Laverne Bowden remained in day-to-day control of Global Industries, Inc. with her office at the Marietta Street property. She was responsible for the periodic payments made to the Thevis' family or to the trusts, pursuant to the sale documents. Late in 1978, she took a series of steps adverse to the interests of Fidelity or Global, which she purported to own.
52. During late 1978 and early 1979, Ms. Bowden, acting through a nominee, set up a California corporation, "Jerry's G & G, Inc.," and moved Fidelity money and assets to San Francisco, to establish a business under that name. For public purposes, Ms. Bowden represented that she was negotiating and dealing with Jerry's G & G at arm's length, and that the transfer of Fidelity assets was for the benefit and advantage of Fidelity.
53. In the summer of 1979, immediately prior to the commencement of the lengthy criminal trial in this Court in Criminal No. 78-180A, Thevis sent word to Ms. Bowden that she was terminated or fired, and she should leave. Ms. Bowden then immediately vacated Fidelity offices, and never returned. Subsequently, Ms. Bowden commenced a civil suit against Fidelity, to recover certain wages for which payment on her paychecks had been stopped.
54. Although Ms. Bowden had personally guaranteed all of the Fidelity indebtedness to Mr. Thevis, for its purchase of Global, to date no suit ever has been commenced on those guarantees against Ms. Bowden, either by Mr. Thevis or by the trustee (who was assigned the notes).
55. Following Ms. Bowden's departure, Ralph Mitchum took nominal control of Fidelity, but left after several months, at the direction of Mr. Thevis. Thereafter Lynda Ivy purported to control Fidelity Equipment Leasing Corp.
56. Beginning in 1979 Lynda Ivy, operating under the guise of "Ibron Industries" and related entities, began to acquire Fidelity retail outlets (book stores) as their leases expired, through sales agreements with Fidelity. Her actions in this regard were known to attorneys for Fidelity/Global, and came to the attention of Mr. Thevis. Inasmuch as Lynda Ivy was acting apparently on her own behalf, Mr. Thevis asked that she visit him in federal prison, and she did so, and he then demanded an interest in Ibron, in terms which Ivy understood as threatening.
57. In 1979, Mr. Thevis stood trial before this Court on major criminal charges, along with Anna Jeanette Evans, A. Bart Hood, and Global Industries, Inc; see United States v. Thevis, 665 F.2d 616 (5th Cir. 1982). During the course of that trial, Georgia Ann Harmon used trust moneys to pay Thevis' legal expenses, and moreover permitted certain assets of the alimony trust (life insurance policies) to be used as collateral to borrow money to pay Thevis' expenses. That action was an abuse of the alimony trust, inasmuch as Thevis was unable to pay interest on the policy loan, as required by the trust instrument.
58. During the same time, assets of Global Industries, Inc. were also sold, specifically real property in New Orleans owned by a Global subsidiary (Amphora Holding) and Global's interest in Cinema Classics, a California movie production firm. Proceeds of the sales were used in part to defray Michael Thevis' legal expenses. The trustee, Georgia Ann Harmon, on behalf of Amphora Holding, executed the documents for that sale, presumably on the basis that the alimony and children's trusts were then in control of Fidelity/Global.
59. In June 1980, almost a year after Ms. Bowden's departure from Fidelity/Global, Georgia Ann Harmon sent her a letter notice, stating that Fidelity Equipment Leasing Corp. was delinquent on its obligations to the alimony and children's trust, and announcing that pursuant to the default provisions of the sales agreements, all of the stock in Fidelity had vested in Georgia Ann Harmon as trustee, as of 1979, and that as sole shareholder she (Harmon) would and could elect directors, appoint officers, and otherwise direct the affairs of Fidelity/Global. This notice constituted an attempted rescission of the 1974-1978 sale of Global to Fidelity.
60. During the period of time from 1979 through 1981, during which Fidelity/Global was under the purported control of the trusts, one Fidelity affiliate was making periodic support payments to Thevis' co-defendant Anna Jeanette Evans, and another affiliate was carrying the wife of Thevis' co-defendant Bart Hood on its payroll, and still another affiliate was carrying Thevis' adult son on its payroll, when neither had any duties nor did any work for their paychecks. These support payments for these three individuals were made for the benefit of Michael Thevis, and were undertaken at the direction or with the connivance of Thevis and Georgia Ann Harmon, the trustee. These payments constitute an abuse of the corporate entities for Thevis' benefit, and an abuse of the trust to the extent the trusts permitted the payments to take place. Georgia Ann Harmon was herself among the persons who delivered cash to Jeanette Evans, so that the trustee had actual knowledge of an abuse of corporate monies.
61. In March 1981, subsequent to entry of an order of this Court in related litigation, the Internal Revenue Service seized and sold all of the assets of Global/Fidelity, and terminated its business. At that time Fidelity ceased all payments to the two trusts on Notes A and B, thus ending alimony payments to Joan Thevis (now Coffman), so that Thevis went into default on his $ 12,000 per month alimony obligation with his ex-wife.
62. In the 1979 criminal trial, Thevis was convicted of racketeering, a part of which charge involved the 1970 murder of one Kenneth Hanna. The defendant Global Industries, Inc. was also convicted of that homicide, on the basis that Global Industries, Inc. was the alter ego of Thevis. Pursuant to that conviction, Global was sentenced to forfeit its interest in 267 Marietta Street. Shortly thereafter, Global Industries, Inc. failed to make its regular mortgage payment to the Federal Deposit Insurance Corporation, successor to Hamilton Bank and Trust, so that on January 1, 1980, the FDIC exercised its power of sale in its deed to secure debt, and the premises were sold at public outcry. After that sale, and the application of the proceeds to the indebtedness owed to the FDIC and to the expenses of the sale, there remained the sum of some $360,000, which on February 19, 1980, the FDIC interpleaded into this Court by commencement of this action. The FDIC was thereafter discharged and dismissed.
63. Among those claims filed against the funds were those of (a) the United States, pursuant to the federal tax liens and the forfeiture decrees, (b) Georgia Ann Harmon, as trustee holding by assignment of the second deed to secure debt, and (c) Joan Thevis, now Joan Coffman, as a beneficiary of that alimony trust. Georgia Ann Harmon, as trustee, thereafter defaulted, so that Joan Coffman as a beneficiary was permitted to proceed herein on the trust's behalf.
64. At the time of the sale by FDIC and the commencement of this action, Thevis was in reasonable compliance with his alimony obligations, through the mechanism of the alimony trust, so that Joan Thevis, now Coffman, as a beneficiary, did not have any current claim against the corpus, or principal, of the trust. That claim did not mature until later, after the IRS seizure in 1981.
65. Georgia Ann Harmon acted as Trustee for the Alimony Trust and Irrevocable Living Trust. She did so at the request of Michael G. Thevis, and generally, relied upon the advice of attorneys in performing her duties as Trustee.
66. Ms. Harmon's principal concern as Trustee was in attempting to ensure that the payments on the promissory notes which funded the trusts were made in full and in a timely fashion.
67. A question was posed by the Court during the testimony of Mr. Morton Levine relative to the execution of the Settlement Agreement. That is, whether the agreement (the original of which is in evidence) was the same agreement which was carried to the New Albany, Indiana jail by attorney Warren Shulman for Michael G. Thevis' signature on or about April 26, 1978. This issue had arisen by virtue of Mr. Shulman's testimony that there was some disagreement between Thevis and himself relative to those assets comprising the settlement with his soon to be ex-wife, Joan Thevis Coffman, though the time of such disagreement was not revealed in Shulman's testimony.
68. Mr. Levine testified that the original Settlement Agreement, including the exhibits thereto, was prepared in Levine's office and it was in fact the agreement which Levine prepared that was executed first, by Thevis in the New Albany, Indiana jail, and subsequently in Atlanta by claimant Joan Thevis Coffman. Additionally, it was Mr. Levine's testimony that he was not shocked or amazed by the contents of the agreement that was returned to him executed by Thevis, and that what in fact was agreed to was arrived at after many long months of hard negotiation with Mr. Shulman.
69. Morton Levine testified that he spent many hours working on this case and that he thoroughly reviewed the various form books and other authorities which might aid him in this responsibility to his client to see that all avenues regarding alimony and child support were exhaustively considered in the Settlement Agreement. It was his further testimony that at no time was he aware of any intent on the part of either Michael or Joan Thevis to in any way collude or act in a fashion so as to defraud creditors. His stated position simply was that it was his duty to obtain for his client and her children as much of Thevis' assets as he could possibly obtain for her, realizing all the while he would never know the extent of his success because he felt he would never know the extent of Michael G. Thevis' holdings at the time of the divorce.
CONCLUSIONS OF LAW
1. Under Section 6151 of the Internal Revenue Code, regardless of when federal taxes are actually assessed, the taxes are considered as due and owing, and constitute a liability as of the date the tax return for the particular period is required to be filed. United States v. Ressler, 433 F. Supp. 459, 463 (S.D. Fla. 1977), aff'd 576 F.2d 650 (5th Cir. 1978), cert. denied, 440 U.S. 929, 59 L. Ed. 2d 485, 99 S. Ct. 1265 (1979); United States v. Adams Building Company, 531 F.2d 342 (6th Cir. 1976); United States v. Hickox, 356 F.2d 969 (5th Cir. 1966); Hartman v. Lauchli, 238 F.2d 881 (8th Cir. 1956), cert. denied, 353 U.S. 965, 1 L. Ed. 2d 915, 77 S. Ct. 1048 (1957). See United States v. Chapman, 84-1 U.S.T.C. (1984). Federal tax liens, however, do not come into existence until the dates of assessment, notice, and demand for payment. Therefore, federal tax liens did not attach until, in this case, after the property in question was transferred. In this situation, the Government's remedy is to seek relief under the fraudulent conveyance laws of the state in which the taxpayers and property are located -- in this case, the law of Georgia. United States v. Ressler, supra; Noonis v. United States, 576 F. Supp. 853 (W.D. Texas 1983); United States v. Grice, 567 F. Supp. 113 (M.D. Ala. 1983).
The principal transfers in this case which are the subject of inquiry are the Global Industries Security Deed to Michael G. Thevis, and the assignment of the $2,000,000.00 Promissory Note and this Deed to the Alimony Trust as part of the divorce settlement. Therefore, the appropriate remedy for the Government is the fraudulent conveyance statute of the state of Georgia, and it is by this and related statutes that the transfers must be analyzed by the Court.
2. The parties agree that "record" title to the fund interpled into this Court has vested in Joan Thevis Coffman by reason of the second mortgage to which she is beneficiary on the 267 Marietta Street, Atlanta, Georgia property which was foreclosed by the FDIC as successor to the Hamilton Bank and Trust Company acting under the power in its first mortgage.
3. The Government seeks to set aside Ms. Coffman's claim to the corpus by virtue of its claim that her interest is subject to being set aside because the transactions by which she gained title were fraudulent under the terms of the Georgia fraudulent conveyance statute (O.C.G.A. § 18-2-22 (Michie 1982) (formerly Ga. Code Ann. § 28-201)) which provides as follows:
The following acts by debtors shall be fraudulent in law against creditors and others, and as to them null and void:
(1) Every assignment or transfer by a debtor, insolvent at the time, of real or personal property or choses in action of any description to any person, either in trust or for the benefit of or on behalf of creditors, where any trust or benefit is reserved to the assignor or any person for him;