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COPY OF COMPLAINT

 

JAMES B. COMEY
United States Attorney for the
Southern District of New York
By: NICOLE GUERON (NG-7682)
Assistant United States Attorney
33 Whitehall Street, 8th Floor
New York, New York 10004
Telephone: (212) 637-2699
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x

UNITED STATES OF AMERICA,

Plaintiff,

-v-

LAWRENCE GAGOSIAN, GAGOSIAN
GALLERY, INC., CONTEMPORARY ART
HOLDING CORPORATION, GEOFFREY J.W.
KENT, GJK INCORPORATED, PETER M.
BRANT, and JAY I. GORDON,

Defendants.
------------------------------------x

 

The United States of America, by its attorney, James B. Comey, United States Attorney for the Southern District of New York, alleges upon information and belief as follows:

 

NATURE OF THE ACTION

I. This is a civil action brought by plaintiff, the United States of America, on behalf of its agency the Internal Revenue Service (the “United States” or the “Government”) to recover millions of dollars of taxes owed by a corporation that has admitted its multi-million dollar tax liability and yet has never paid a cent of it to the IRS.

II. Over the course of a few weeks in 1990, Contemporary Art Holding Corporation (“CAHC”) was created, bought 62 works of art, sold 58 of the works of art, and earned approximately $17,000,000 in taxable capital gains. Thereafter, CAHC transferred its sole remaining assets – 4 multi-million dollar paintings – to its current and former shareholders, purportedly leaving it without any assets to pay its taxes. In its tax returns, CAHC admitted that it owes the IRS millions of dollars in taxes due to this transaction, but CAHC never paid any of this money to the IRS.

III. CAHC’s creators, Lawrence Gagosian, Peter M. Brant and Jay I. Gordon, structured the transaction described above with Geoffrey J.W. Kent and GJK Incorporated, Kent’s wholly-owned corporation and CAHC’s subsequent sole shareholder, with full understanding of the tax consequences for CAHC. The defendants conceived and structured the transaction to transfer valuable art work into their hands, while purportedly leaving CAHC without assets to pay its millions of dollars of tax liability.

IV. In this suit, the Government seeks, inter alia, (1) to collect upon a judgment against CAHC issued by the United States District Court for the Northern District of Illinois, in the amount of $9,921,227.83, plus penalties and interest, entered in the matter captioned United States of America v. Contemporary Art Holding Corporation, 98 Civ. 6058 (N.D. Ill.), which was entered as a judgment in the Southern District of New York on October 28, 2002, under Docket Number M 18-302, Judgment Number 02,2308; (2) to foreclose on and enforce the IRS’s federal tax liens under 26 U.S.C. § 7403, by setting aside and declaring fraudulent, null and void as against the United States the purported conveyances of certain paintings and encumbrances on paintings from CAHC to Lawrence Gagosian, Gagosian Gallery, Geoffrey Kent, GJK, Incorporated and Peter Brant, and declaring those transfers to be subject to the Government’s liens; (3) to obtain a judgment against Gagosian for failure to honor an IRS tax levy served upon him; and (4) to pierce the corporate veil of CAHC and hold Gagosian, Brant and GJK liable as the alter-egos of CAHC.

V. This action has been authorized and requested by a delegate of the Secretary of the Treasury, and is brought at the direction of the Attorney General of the United States pursuant to the provisions of 26 U.S.C. §§ 7401, 7402 and 7403, as amended.

JURISDICTION AND VENUE

I. The Court has jurisdiction over this claim pursuant to 28 U.S.C. §§ 1340 and 1345, and 26 U.S.C. §§ 7402 and 7403.

II. Venue is proper pursuant to 28 U.S.C. §§ 1391(b), 1391(d), and 1396, because Gagosian and Gordon reside and/or work within the Southern District of New York; because Kent is an alien; because all of the defendants do business within the Southern District of New York; because at least one of the paintings subject to the IRS liens is within the Southern District of New York; and because the February 15, 1990 transaction detailed below, involving all the defendants, took place within the Southern District of New York and is governed by New York law.

THE PARTIES

I. Plaintiff United States of America is a sovereign and body politic that acts through various agencies, including the Department of Treasury – Internal Revenue Service (the “IRS”).

II. Lawrence Gagosian (“Gagosian”) resides at [New York address].

III. Gagosian Gallery is a business located at 980 Madison Avenue, New York, New York 10021 and at 555 West 24th Street, New York, New York, 10011.

IV. Contemporary Art Holding Corporation (“CAHC”) is a Texas corporation whose principal place of business was located within the Southern District of New York during the relevant time period.

V. GJK Incorporated (“GJK”) is a Florida corporation owned wholly by Geoffrey J.W. Kent, is the 100 percent shareholder of CAHC, and conducts business within the Southern District of New York.

VI. Geoffrey J.W. Kent (“Kent”) is a British citizen, a resident of Kenya, and conducts business within the Southern District of New York. In 1990, he resided at United Nations Plaza, Apartment 35b, New York, New York.

VII. Peter M. Brant (“Brant”) resides at [New York address] and conducts business within the Southern District of New York.

VIII. Jay I. Gordon (“Gordon”) conducts business at 200 Park Ave., New York, New York, 10166.

PENDING LAWSUIT AGAINST KENT

I. On August 26, 2002, the United States filed a complaint against Kent in the Northern District of Illinois, entitled United States of America v. Geoffrey J.W. Kent, 02 C 6064 (N.D. Ill.). The suit seeks an order declaring that Kent is the alter ego of CAHC and is personally liable for the taxes owed by CAHC. The United States will move shortly to transfer that suit to the Southern District of New York, pursuant to 28 U.S.C. § 1404, to be consolidated with this suit.

FACTUAL BACKGROUND

I. On January 28, 1988, GJK was incorporated in Florida. Kent is the sole shareholder of GJK, and was during the relevant time period described herein.

II. In 1988, GJK’s officers and board members were Kent, Jorie Butler Kent (Geoffrey Kent’s former wife), David M. Weber and Brant.

III. Brant and Kent have been involved in other business transactions together, in addition to CAHC and GJK, including real estate transactions in Connecticut.

IV. On January 18, 1990, CAHC was incorporated in Texas.

V. On January 18, 1990, Gagosian purchased 51,000 shares of CAHC’s common stock for $510. Initially, Gagosian was the president, director and 51 percent shareholder of CAHC.

VI. Also on January 18, 1990, Brant purchased 49,000 shares of CAHC’s common stock for $490. Initially Brant was the vice-president, treasurer, assistant secretary, director and 49 percent shareholder of CAHC.

VII. Gagosian and Brant appointed Gordon as the corporate secretary of CAHC on January 18, 1990. Gordon served as the secretary of CAHC from its inception through the February 15, 1990 transaction, and was reappointed by Kent after Kent took control of CAHC.

VIII. By resolution dated January 18, 1990, Gagosian and Brant authorized Gordon to sign promissory notes and bills of sale on behalf of CAHC. Gordon was the sole signatory of CAHC’s by-laws, adopted on January 18, 1990.

IX. From January 18, 1990 through February 15, 1990, CAHC conducted no significant business other than what is described herein. CAHC did not operate as an independent corporation; it did not have corporate offices or employees; it used Gordon’s law offices as its formal address; it was merely the instrument of Gagosian, Brant and Gordon, who controlled it completely.

X. On January 23, 1990, Brant and Gagosian each contributed $500,000 to the capital of CAHC.

XI. Also on January 23, 1990, CAHC entered into a Stock Purchase Agreement with Richard L. Weisman, the 100 percent shareholder of Lerand Inc., a California corporation (“Lerand”), to purchase all the outstanding shares of Lerand for $32,000,000 (the “January 23, 1990 Stock Purchase Agreement”). CAHC made a down payment of $1,000,000. The January 23, 1990 Stock Purchase Agreement provided that it would be “governed by and construed in accordance with the laws of the State of New York.”

XII. Lerand’s sole assets consisted of 62 pieces of contemporary artwork.

XIII. The January 23, 1990 Stock Purchase Agreement and accompanying documents included a “Schedule of Values of Art Work” of Lerand’s 62 paintings, and a letter signed by Gagosian, Brant and Weisman confirming that Schedule. The Schedule of Values of Art Work listed, inter alia, the following values: (a) Roy Lichtenstein, “Blonde Waiting, 1964”: $3,868,100.19; (b) Clyfford Still, “Untitled R#2, 1947”: $2,707,670.13; (c) Mark Rothko, “Green & Blue, 1957”: $2,862,394.14; and (d) Barnett Newman, “Onement #6, 1953”: $ 2,320,860.11.

XIV. The next day, January 24, 1990, Gagosian, Brant and Weisman signed a letter agreement amending the stated value of the Rothko to $2,688,547.98 due to some damage to the painting. A “Change Notice” was later executed concerning the value of the Newman painting, as it too had suffered damage.

The February 15, 1990 Transaction

I. The Defendants structured and conceived of the February 15, 1990 transaction described below to transfer valuable art work and assets into the hands of CAHC’s shareholders while stripping CAHC of its assets before millions of dollars of tax liabilities could be collected.

II. The following events, described in paragraphs 33 through 56, all occurred on February 15, 1990, in one multi-part transaction.

III. The transaction took place at Gordon’s law office, at Dreyer and Traub, 101 Park Avenue, New York, New York 10178. Gordon structured the February 15, 1990 transaction, drafted many of the documents effecting that transaction, and earned tens of thousands of dollars in attorneys fees on the transaction.

IV. Gagosian contributed $5,638,076.92 to CAHC, Brant contributed $5,388,076.92 to CAHC, and Thomas Ammann Fine Art A.G. (“Ammann”), the purchaser of 58 of the art work pieces initially held by Lerand, contributed $800,000 to CAHC.

V. Brant borrowed $4,830,000 from GJK to purchase his shares of CAHC.

VI. In a tax-free merger, Lerand sold 100 percent of its stock to CAHC for $32,000,000, consisting of the earlier $1,000,000 down payment, $11,826,153.84 in cash, a promissory note for $18,200,000, and a second promissory note for $1,000,000. The promissory notes were signed by Gordon, and secured by lines of credit and personal guarantees from Brant and Gagosian. The various merger documents, notes and guarantees were signed by Weisman, Gordon, Gagosian and Brant.

VII. After the merger, CAHC owned Lerand’s 62 pieces of contemporary artwork with a carryover cost basis of $3,005,766.26.

VIII. Brant sold his 49 percent interest in CAHC to GJK in exchange for a cancellation of Brant’s $4,830,000 debt to GJK and a cash payment from GJK to Brant of $1,058,076.92. In addition, in a guaranty to Brant, Kent assumed Brant’s and CAHC’s obligations to Weisman, including Brant’s personal guarantee of the notes to Weisman. Kent’s guaranty states that it is governed by the laws of the State of New York.

IX. Brant obtained from CAHC, for no additional consideration, an option to purchase a Barnett Newman painting entitled “Onement #6” for $2,441,923.08, exercisable no later than February 15, 1995. The option agreement states that it is governed by the laws of the State of New York. Brant took possession of the Newman painting and moved it to his home.

X. Brant and Kent also signed an indemnity agreement which stated that Brant “will indemnify [Kent] and Contemporary Art Holding Corp. for any United States income tax incurred in the event that the painting by Barnett Newman entitled ‘Onement #6’ shall be determined to have a value in excess of $3,500,000, but only to the extent of the tax incurred by reason of such increased value” (the “Brant Indemnity Agreement”).

XI. For the period of February 15, 1990 through February 15, 1991, Kent contracted with Lloyds of London to insure the Newman painting for $4 million.

XII. Gagosian sold his 51 percent interest in CAHC to GJK for $6,138,076.92 and GJK issued a promissory note in that amount, plus 8.1 percent interest per year, to Gagosian. Under the note, GJK was to pay Gagosian interest of $41,425 per month and the principal amount of $6,138,076.92 in 1995. The promissory note was signed by Kent in New York, and states that it is governed by the laws of the State of New York. In addition, in a guaranty to Gagosian, Kent assumed Gagosian’s and CAHC’s obligations to Weisman, including Gagosian’s personal guarantee of the notes to Weisman. Kent’s guaranty states that it is governed by the laws of the State of New York.

XIII. Brant and Gagosian resigned as officers and directors of CAHC and endorsed their CAHC stock to GJK, which became the sole shareholder of CAHC, with Kent as the sole director of CAHC. Kent named himself the president and director of CAHC; he named Gordon a vice-president and secretary, and Weber a vice-president and treasurer.

XIV. In a one-page lease agreement entitled “Use of Art Work”, CAHC agreed to lease to Gagosian two paintings, Roy Lichtenstein’s “Blonde Waiting, 1964” and Clyfford Still’s “Untitled R#2, 1947,” for a period of five years in exchange for rental payments of $41,425.00 per month. The lease document, addressed to Gagosian and signed by Gagosian and by Kent on behalf of CAHC, states:

The purpose of this letter is to confirm our understanding and agreement that we will lease to you (1) a painting by Roy Lichtenstein entitled “Blonde Waiting, 1964” and a painting by Clyfford Still entitled “Untitled R#2, 1947” for a period of five (5) years from the date hereof. In exchange for the lease, you will pay to us $41,425.00 per month.

 

I. Gagosian’s purported monthly lease payments of $41,425.00 to CAHC exactly equaled the amount of monthly interest payments that GJK, CAHC’s sole shareholder, owed Gagosian in connection with Gagosian’s sale of his interest in CAHC to GJK. The result was that no money changed hands under the purported stock sale and art lease transactions among GJK, CAHC, and Gagosian.

II. For consideration of $1.00, CAHC also granted Gagosian an option to purchase the Lichtenstein and Still paintings for $6,138,076.92, exercisable no later than February 15, 1995. The option price was the same amount of money that GJK paid for Gagosian’s share of CAHC. The option could be exercised only by serving notice upon CAHC, and the option, if unexercised, automatically expired on February 15, 1995. The option agreement states that it is governed by the laws of the State of New York.

III. GJK and Gagosian agreed separately that Gagosian would not exercise his purchase option unless Kent had informed him in writing that CAHC would be liquidated in the same year that Gagosian exercised the option.

IV. GJK, CAHC and Gagosian entered into an indemnity agreement, under which Gagosian agreed to indemnify CAHC and GJK for one-half of the United States taxes owed on the sale of CAHC’s paintings, less the amount of certain tax benefits available to GJK (the “Gagosian Indemnity Agreement”). The Gagosian Indemnity Agreement states that it “shall be governed and construed in accordance with the laws of State of New York without regard to the conflicts of laws principles thereof.” The Gagosian Indemnity Agreement was signed by Kent and Gagosian.

V. GJK, CAHC and Gagosian also agreed that GJK could not transfer any of CAHC’s stock without Gagosian’s consent, that CAHC could not engage in any material transaction without Gagosian’s consent, that GJK would cause CAHC to be completely liquidated no later than five years from 1990, and that Gagosian would exercise his option to purchase only in the year that CAHC was completely liquidated.

VI. No contemporaneous document identifies any aspect of the February 15, 1990 transaction as creating a security interest for any party, and in no document did Gagosian or Brant claim to be taking a security interest in connection with the transaction.

VII. Also on February 15, 1990, CAHC entered into an agreement with Ammann to sell 58 of the 62 pieces of art initially owned by Lerand for $20,000,000. The CAHC-Ammann sale agreement described CAHC as “a Texas corporation, controlled by GJK, Incorporated.” The agreement also stated that it would be “governed by and construed in accordance with the laws of the State of New York.” The Ammann Sale Agreement was signed by Gordon and Doris Ammann. Gordon also signed all bills of sale for the art works. Although they purportedly no longer owned CAHC, Gagosian and Brant personally agreed to indemnify Ammann “for any United States income tax attributable to and imposed upon the sale of the artwork from Contemporary Art Holding Corp. to Thomas Ammann Fine Art A.G.”

VIII. Ammann’s purchase price was payable in three parts: $800,000 cash, as described in paragraph 34; a promissory note in the amount of $18,200,000; and a promissory note in the amount of $1,000,000. Both promissory notes were secured by lines of credit.

IX: At the close of business on February 15, 1990, GJK owned 100 percent of CAHC, Kent was the President of CAHC and Gordon was the Vice President and Secretary of CAHC. After February 15, 1990, CAHC did not operate as an independent corporation; it was controlled by Kent and GJK, with assistance from Gordon.

X. At the close of business on February 15, 1990, CAHC owned four paintings, Lichtenstein’s “Blonde Waiting, 1964,” Still’s “Untitled R#2, 1947,” Newman’s “Onement #6, 1953,” and Rothko’s “Green-Blue, 1957.” The Lichtenstein and Still paintings were leased to Gagosian, who also had an option to buy them; the Newman was subject to Brant’s purchase option.

XI. CAHC also held notes receivable of $18,200,000 and $1,000,000 from Ammann, and owed Weisman $19,200,000 (on two notes payable of $18,200,000 and $1,000,000 each).

XII. Since the cost basis of the 58 paintings sold to Ammann was $2,015,515.47, CAHC has earned capital gains of $17,984,484.53. CAHC arranged to have the sales treated as installment sales, so taxes on these capital gains were to be paid over the following three years.

CAHC’s Tax Liabilities

I. On its Form 1120 tax return for Fiscal Year 1990, ending November 30, 1990, filed in August, 1991, CAHC reported that it owed $679,356 in taxes, but did not pay any of its admitted tax liability to the IRS.

II. On September 30, 1991, the IRS made an assessment against CAHC of $679,356 for Fiscal Year 1990.

III. On its Form 1120 tax return for Fiscal Year 1991, ending November 30, 1991, filed in August, 1993, CAHC reported that it owed $4,234,372 in taxes. The 1991 liability was attributable to the installment sale treatment of the 1990 transaction, as well as the purported sale of the Newman and Rothko paintings from CAHC to GJK. CAHC did not pay any of its admitted tax liability to the IRS.

IV. On September 20, 1993, the IRS made an assessment against CAHC of $4,234,372 of tax, plus penalties in excess of $1,600,000, for Fiscal Year 1991.

V. On its Form 1120 tax return for Fiscal Year 1992, ending November 30, 1992, filed in August, 1993, CAHC reported that it owed $1,825,745 in taxes. The 1992 liability was attributable to the installment sale treatment of the 1990 transaction. CAHC did not pay any of its admitted tax liability to the IRS.

VI. On October 4, 1993, the IRS made an assessment against CAHC of $1,825,745, plus penalties in excess of $500,000, for Fiscal Year 1992.

VII. Notices and demands for payment were sent to the taxpayer on or about the dates of assessment set forth in paragraphs 58, 60 and 62.

Notices of Federal Tax Liens

The Internal Revenue Service filed Notices of Federal Tax Lien against CAHC in the states of New York, Illinois and California as follows:

FISCAL YEAR FILED AMOUNT

Registrar, New York County, New York 10007
11/30/90 08/31/93 $761,837.50
11/30/91 12/09/93 $6,459,048.67

Secretary of State, Albany, New York 12225
11/30/90 12/10/93 $761,837.50
11/30/91 12/10/93 $6,459,048.67

Recorder of Deeds, DuPage County, Illinois 60187
11/30/90 06/09/92 $761,837.50
11/30/91 10/03/94 $6,627,323.86
11/30/92 10/03/94 $2,532,066.47

Secretary of State, Springfield, Illinois 62756
11/30/90 06/12/92 $761,837.50
11/30/91 10/27/94 $6,627,323.86
11/30/92 10/27/94 $2,532,066.47

County Recorder, Los Angeles County, California 90250
11/30/90 03/01/94 $761,837.50
11/30/91 03/01/94 $6,627,323.86
11/30/92 03/01/94 $2,532,066.47

Secretary of State, Sacramento, California 95808
11/30/90 02/04/94 $761,895.50
11/30/91 02/04/94 $6,627,323.86
11/30/92 02/04/94 $2,532,066.47

I. The Fiscal Year 1991 liens filed in Illinois were revoked and new liens were filed on or about March 13, 2003.

The Defendants Failed to Pay the Taxes Owed to the IRS

I. CAHC never paid the IRS the approximately $6.7 million in tax monies that it admittedly owed on the February 15, 1990 transaction. With subsequently accrued interest and penalties, CAHC’s tax liability has grown to approximately $26.5 million as of January 31, 2003.

II. The defendants know of the tax liabilities created by the February 15, 1990 transaction, and knew before the transaction took place that tax liabilities of approximately $6.7 million would arise as a result of the transaction. Nonetheless, the defendants contrived to divert CAHC’s assets to themselves and other entities owned by them, rather than directing CAHC to pay its tax liabilities.

III. From 1991 through 1998, the IRS sent numerous Requests for Payment and Reminders of Overdue Taxes to CAHC.

IV. On January 18, 1991, David Weber wrote on behalf of CAHC to Gagosian, stating “As you might recall, per the Indemnification Agreement of February 15, 1990 between yourself, CAHC and GJK Incorporated, there will be due from you one half of the U.S. income tax imposed upon CAHC on the sale of assets to Thomas Ammann Fine Art A.G.”

Purported Transfers of the Newman and Rothko Paintings Away from CAHC

I. In or about December, 1990, Citibank loaned CAHC $5,000,000, purportedly secured by the Rothko and Newman paintings. Citibank also loaned Kent money for his personal use; this loan was also purportedly secured by the Rothko and Newman paintings owned by CAHC. Upon information and belief, CAHC did not, in fact, receive this $5,000,000.

II. CAHC’s accounting records for 1991 and 1992 show that CAHC was intermingling funds between CAHC, GJK and Kent. The CAHC ledgers show purported loans from CAHC to GJK and Kent, but do not state whether the purported loans were ever repaid to CAHC. Memoranda between Kent and Weber of CAHC also reveal that Kent and Brant were in contact about releasing the Newman as collateral for the Citibank loan, and replacing it with real estate controlled by Brant.

III. On April 7, 1992, after CAHC had filed its first tax return and after the IRS had made its first assessment for Fiscal Year 1990 and demanded payment, Kent instructed CAHC to transfer the Newman and Rothko paintings to GJK for consideration of $10.00, as a “dividend in kind”. This transfer was executed through an Assignment and Assumption Agreement between CAHC and GJK. In that agreement, CAHC listed as its address: “c/o Dreyer and Traub, 101 Park Avenue, New York, New York, 10178,” which was Gordon’s business address. Upon information and belief, Gordon drafted the Assignment and Assumption Agreement.

IV. In June of 1993, GJK purportedly sold the Rothko to a third party, C&M Arts, an art dealer in New York. The purchase price for the Rothko was $1,600,000, the entire amount of which was distributed to Citibank.

V. On July 15, 1994, after the IRS had filed its notices of liens and begun investigating CAHC, GJK purportedly sold the Newman (allegedly subject to Brant’s option to purchase) to the Machalite Foundation of Liechtenstein, for $2,250,000. In so doing, Kent and GJK intentionally transferred an asset overseas to avoid seizure by the IRS. Upon information and belief, Brant never took any action to enforce his option rights.

VI. As purported consideration for the sale, the Machalite Foundation agreed that the purported sale price of $2,250,000 would be applied against the principal balance of a note dated February 21, 1989 from GJK to Machalite.

VII. Upon information and belief, Kent later regained control of the Newman painting, and transferred it to Brant. Brant then sold the Newman painting.

VIII. CAHC was insolvent at the time of the purported transfers of the Newman and the Rothko to GJK, or became insolvent as a result of the purported transfers.

Judgment Against CAHC

I. On September 28, 1998, the United States filed a suit entitled United States of America v. Contemporary Art Holding Corporation, 98 Civ. 6058 (N.D. Ill), United States District Court for the Northern District of Illinois.

II. On January 4, 2000, final judgment was entered in the United States District Court for the Northern District of Illinois against CAHC in the amount of $9,921,227.83, plus penalties and interest running from the dates of the 1991 and 1993 tax assessments. This judgment is now worth approximately $26.5 million.

III. CAHC has never paid any of this judgment.

IV. On October 28, 2002 the United States entered the default judgment against CAHC in the Southern District of New York, under Docket Number M 18-302, Judgment Number 02,2308.

Efforts to Collect Taxes or CAHC Property From Gagosian

I. On September 14, 1993, the IRS served a Notice of Levy, form 668-A, on Gagosian. The Notice of Levy identified CAHC as the taxpayer at issue, stated the total amount due to be $7,562,884.00, and stated on its face, in hand writing: “Paintings: ‘Untitled Number Two, 1947’ by Clyfford Still, ‘Blonde Waiting, 1964’ by Roy Lichtenstein.”

II. Gagosian never filed a wrongful levy action in opposition to this Notice of Levy.

III. On August 25, 1993, only a few weeks before the IRS served Gagosian with the Notice of Levy, Gagosian’s accountant, Neil H. Millman, wrote to the IRS concerning the Lichtenstein and Still Paintings. Millman wrote: “Both of the above mentioned works of art are subject to a lease arrangement to Mr. Gagosian which commenced on February 15, 1990 and continues until February 15, 1995. There is also an option to acquire both works of art at the termination of the lease.”

IV. By letter dated March 10, 1994, counsel for CAHC also informed the IRS that two of the paintings owned by CAHC, “the Lichtenstein and the Still – were leased to Mr. Gagosian.”

V. In a letter to the IRS dated May 2, 1994, Gagosian stated that “Blonde Waiting” was “owned by CAHC.”

VI. By letter dated May 17, 1994, counsel for CAHC made a settlement proposal to the IRS. In that offer, CAHC stated that the Lichtenstein and Still paintings “constitute the sole remaining assets” of CAHC. CAHC also stated, “When considering the effect of the Offer in Compromise, you should be aware that legal title to the Still and Lichtenstein will be transferred to Gagosian Galleries upon payment in full of the settlement amount to the Service. This arrangement will generate an additional tax liability to the taxpayer [CAHC] in the fiscal year in which such transfer takes place.” Gagosian and his counsel reviewed this settlement proposal before it was sent to the IRS and were fully aware of its contents, including the statement that CAHC owned the Lichtenstein and the Still.

VII. Gagosian never exercised his option to purchase the Lichtenstein and Still paintings. CAHC has never reported tax liability from a sale of the Still and the Lichtenstein, and., upon information and belief, Gagosian never paid sales tax on a purchase of the Still and the Lichtenstein. Yet as of 1990, Gagosian Gallery listed among its inventory the Lichtenstein and the Still. In more recent correspondence with the United States, Gagosian has claimed ownership of the Lichtenstein, and claims that this ownership predates the IRS’s lien on the painting.

VIII. CAHC was insolvent at the time of CAHC’s purported transfer of the Lichtenstein and Still to Gagosian, or became insolvent as a result of the purported transfers described herein.

IX. On or about September 30, 1996, Gagosian sold the Still painting for $2,250,000 and used the proceeds to acquire two paintings: Frank Stella’s “Fugita” and Eric Fischl’s “Far Rockaway” (together, the “Replacement Paintings”).

FIRST CLAIM – FORECLOSURE UPON TAX LIENS (26 U.S.C. § 7403)

I. The Government repeats and realleges paragraphs 1 through 90 of the complaint as if fully set forth herein.

II. The IRS made assessments against CAHC for deficiencies in the payment of its federal income taxes.

III. Pursuant to 26 U.S.C. §§ 6321 and 6322, CAHC’s tax liabilities continue until the amount assessed is satisfied.

IV. The IRS made demands for payment of those taxes from CAHC, and filed Federal Tax Liens against CAHC.

V. When the notices of IRS liens were filed, CAHC owned four paintings: the Lichtenstein, the Still, the Rothko and the Newman.

VI. Despite the notices of assessment and demands for payment described above, CAHC failed to pay the assessed sums and remains liable to the United States for unpaid federal income taxes for the fiscal years 1990, 1991 and 1992.

VII. The federal tax liens arising in favor of the United States attached to all property or rights to property that CAHC owned as of the date the liens arose or the property was thereafter acquired.

VIII. By this action the United States seeks to enforce and foreclose its tax liens for fiscal years 1990, 1991 and 1992, against property owned by CAHC as of the dates those liens were filed, specifically the Lichtenstein, Still, Rothko and Newman paintings.

SECOND CLAIM – FAILURE TO HONOR LEVY (26 U.S.C. § 6332

I. The Government repeats and realleges paragraphs 1 through 98 of the complaint as if fully set forth herein.

II. On September 14, 1993 and thereafter, Gagosian and/or Gagosian Gallery was in possession of the Lichtenstein and the Still, which were property of CAHC and subject to the levy that the Government served on Gagosian.

III. Despite the Government’s demand, Gagosian and/or Gagosian Gallery failed or refused to surrender the Lichtenstein and/or the Still to the Government. Gagosian did not challenge the levy, assert that the paintings were not in his possession, or claim that he owned the Lichtenstein and the Still.

IV. Gagosian and/or Gagosian Gallery did not have reasonable cause for failing or refusing to surrender to the Government the CAHC property that he possessed at the time the Government served its levy on him.

V. Gagosian’s and Gagosian Gallery’s failure to honor the IRS levy violated 26 U.S.C. § 6332(d)(1).

THIRD CLAIM – FRAUDULENT CONVEYANCE (NYS Debtor & Creditor Law § 273

I. The Government repeats and realleges paragraphs 1 through 103 of the complaint as if fully set forth herein.

II. At the time of the purported conveyances of the Lichtenstein, Still, Rothko and Newman paintings, or rights in those paintings, away from CAHC described above, defendants CAHC, Kent, GJK, Gagosian, Gagosian Gallery, Brant and Gordon knew that CAHC owed millions of dollars in taxes to the IRS and that CAHC had not paid those taxes to the IRS.

III. These purported conveyances were made when CAHC was insolvent, or rendered CAHC insolvent.

IV. These purported conveyances were not made in good faith and were not made for fair consideration.

V. These purported conveyances violated New York State Debtor and Creditor Law Section 273.

FOURTH CLAIM – FRAUDULENT CONVEYANCE (NYS Debtor & Creditor Law § 274

I. The Government repeats and realleges paragraphs 1 through 108 of the complaint as if fully set forth herein.

II. At the time of the purported conveyances of the Lichtenstein, Still, Rothko and Newman paintings, or rights in those paintings, away from CAHC described above, CAHC was a corporation engaged in a business or transaction.

III. At the time of the purported conveyances of the Lichtenstein, Still, Rothko and Newman paintings, or rights in those paintings, away from CAHC described above, defendants CAHC, Kent, GJK, Gagosian, Gagosian Gallery, Brant and Gordon knew that CAHC owed millions of dollars in taxes to the IRS and that CAHC had not paid those taxes to the IRS.

IV. These purported conveyances were made when CAHC was insolvent, or rendered CAHC insolvent, and left CAHC with an unreasonably small amount of capital.

V. These purported conveyances were not made in good faith and were not made for fair consideration.

VI. These purported conveyances violated New York State Debtor and Creditor Law Section 274.

FIFTH CLAIM – FRAUDULENT CONVEYANCE (NYS Debtor & Creditor Law § 275

I. The Government repeats and realleges paragraphs 1 through 114 of the complaint as if fully set forth herein.

II. At the time of the purported conveyances of the Lichtenstein, Still, Rothko and Newman paintings, or rights in those paintings, away from CAHC described above, defendants CAHC, Kent, GJK, Gagosian, Gagosian Gallery, Brant and Gordon intended and believed that CAHC would incur and owe millions of dollars in tax liabilities to the IRS, that CAHC had no assets to pay those taxes to the IRS other than the paintings, and that CAHC would be unable to pay those taxes.

III. These purported conveyances were not made in good faith and were not made for fair consideration.

IV. These purported conveyances violated New York State Debtor and Creditor Law Section 275.

SIXTH CLAIM – FRAUDULENT CONVEYANCE (NYS Debtor & Creditor Law § 276

I. The Government repeats and realleges paragraphs 1 through 118 of the complaint as if fully set forth herein.

II. At the time of the purported conveyances of the Lichtenstein, Still, Rothko and Newman paintings, or rights in those paintings, away from CAHC described above, defendants CAHC, Kent, GJK, Gagosian, Gagosian Gallery, Brant and Gordon intended to hinder, delay or defraud the IRS from recovering taxes CAHC owed or would owe to the IRS.

III. These purported conveyances violated New York State Debtor and Creditor Law Section 276.

SEVENTH CLAIM – FRAUDULENT CONVEYANCE (NYS Debtor & Creditor Law § 278

I. The Government repeats and realleges paragraphs 1 through 121 of the complaint as if fully set forth herein.

II. Any purported transfer of the Lichtenstein, Still, Rothko and Newman paintings, or rights in those paintings, away from CAHC was fraudulent and without fair consideration, and should be annulled, voided, disregarded and set aside pursuant to New York State Debtor and Creditor Law Section 278.

EIGHTH CLAIM – PIERCING THE CORPORATE VEIL/ALTER EGO THEORY

I. The Government repeats and realleges paragraphs 1 through 123 of the complaint as if fully set forth herein.

II. CAHC had no separate existence or corporate purpose other than to permit Kent, GJK, Gagosian, Gagosian Gallery and Brant to acquire the Lichtenstein, Rothko, Still and Newman paintings, or rights in those paintings, for their personal benefit.

III. CAHC had no independent corporate office or employees. Kent, Brant and Gagosian did not run CAHC as an independent, profitable corporation. CAHC exercised no independent business discretion and engaged in no business other than the February 15, 1990 transaction and the subsequent sales of paintings acquired in that transaction.

IV. Gagosian and Brant controlled and ran CAHC before February 15, 1990. They used that control to structure the February 15, 1990 transaction in order to enrich themselves and purportedly to leave CAHC with no assets with which to pay its tax liabilities. They purportedly sold, transferred or encumbered three of CAHC’s only remaining assets – the Lichtenstein, Still and Newman paintings – for consideration that was not fair, despite the fact that CAHC owed millions of dollars in tax liabilities to the IRS.

V. Kent and GJK controlled and ran CAHC after the February 15, 1990 transaction. They used that control to enrich themselves and purportedly to leave CAHC with no assets with which to pay its tax liabilities. Under Kent’s and GJK’s control, CAHC comingled its funds with monies belonging to Kent and/or GJK and purportedly sold, transferred or encumbered CAHC’s only remaining assets – the Lichtenstein, Still, Rothko, and Newman paintings – for consideration that was not fair, despite the fact that CAHC owed millions of dollars in tax liabilities to the IRS.

VI. Gagosian, Brant and GJK should be held to be alter-egos liable for CAHC’s tax liabilities, and this Court should pierce CAHC’s corporate veil to reach Gagosian, Brant and GJK. Should the lawsuit entitled United States of America v. Geoffrey J.W. Kent, 02 C 6064 (N.D. Ill.) be transferred to this Court, relief should be granted against Kent on this claim as well.

NINTH CLAIM – TORTIOUS CONVERSION

I. The Government repeats and realleges paragraphs 1 through 129 of the complaint as if fully set forth herein.

II. Kent, GJK and Gordon controlled and ran CAHC after the February 15, 1990 transaction. They purportedly sold or transferred the assets of CAHC – the Lichtenstein, Still, Rothko and Newman paintings – away from CAHC and thus beyond the reach of the IRS. To the extent that these purported transfers were to bona fide purchasers, they constituted tortious conversions of the IRS’s interests, through its tax liens, in the Lichtenstein, the Still, the Rothko, and/or the Newman paintings, or any cash proceeds derived from their purported sales to the extent that that cash was dissipated.

III. Gagosian and Gagosian Gallery had possession of the Lichtenstein and the Still after the February 15, 1990 transaction. They sold the Still, purportedly placing it beyond the reach of the IRS. To the extent that the Still was sold to a bona fide purchaser and the proceeds were dissipated, this purported sale constituted a tortious conversion of the IRS’s tax lien on the Still or any cash proceeds derived from its sale.

IV. Upon information and belief, Kent gave Brant the Newman painting on some date after GJK sold it to the Machalite Foundation, and Brant sold the Newman painting, purportedly placing it beyond the reach of the IRS. To the extent that the Newman painting was sold to a bona fide purchaser and the proceeds were dissipated, this purported sale constituted a tortious conversion of the IRS’s tax lien on the Newman painting or any cash proceeds derived from its sale.

TENTH CLAIM – UNJUST ENRICHMENT

I. The Government repeats and realleges paragraphs 1 through 133 of the complaint as if fully set forth herein.

II. Through the conduct alleged herein, CAHC, Gagosian, Gagosian Gallery, Kent, GJK, Gordon and Brant were on notice of the IRS’s valid tax claims against CAHC, failed to pay the IRS the monies owed to the IRS, and unjustly enriched themselves at the expense of the IRS.

ELEVENTH CLAIM – BREACH OF CONTRACT (THIRD PARTY BENEFICIARY)

I. The Government repeats and realleges paragraphs 1 through 135 of the complaint as if fully set forth herein.

II. Under the Gagosian Indemnity Agreement, Gagosian agreed to indemnify CAHC and GJK for one-half of the United States taxes owed on the sale of CAHC’s paintings, less certain tax benefits accruing to other parties, if any.

III. Under the Brant Indemnity Agreement, Brant agreed to indemnify Contemporary Art Holding Corp. for any United States income tax incurred in the event that the painting by Barnett Newman entitled ‘Onement #6’ shall be determined to have a value in excess of $3,500,000.

IV. The United States is the intended third party beneficiary of both of these Indemnity Agreements, in which Gagosian and Brant made binding contractual promises to pay United States taxes on the CAHC sales described above.

V. Gagosian breached the Gagosian Indemnity Agreement when he failed to pay to CAHC, GJK or the United States his portion of the taxes owed by CAHC to the United States.

VI. The United States is entitled to damages on the Gagosian Indemnity Agreement from Gagosian in the amount of one-half of the United States taxes owed on the sale of CAHC’s paintings, plus interest and penalties on those taxes, less any relevant tax benefits as contemplated by the Indemnity Agreement.

VII. Brant breached the Brant Indemnity Agreement when he failed to pay CAHC any portion of the taxes on the Newman painting, although it was repeatedly valued at more than $3.5 million.

VIII. The United States is entitled to damages on the Brant Indemnity Agreement from Brant in the amount of the United States taxes owed on the sale of the Newman painting, to the extent it was valued at, and should have been sold at, more than $3.5 million.

TWELFTH CLAIM – ENFORCING JUDGMENT

I. The Government repeats and realleges paragraphs 1 through 142 of the complaint as if fully set forth herein.

II. By this action the United States also seeks to enforce the judgment issued by the United States District Court for the Northern District of Illinois, in the amount of $9,921,227.83, plus penalties and interest running from the dates of assessment in 1991 and 1993, entered in the matter captioned United States of America v. Contemporary Art Holding Corporation, 98 Civ. 6058 (N.D. Ill.), which was entered as a judgment in the Southern District of New York on October 28, 2002, under Docket Number M 18-302, Judgment Number 02,2308. The total amount owed on these tax liabilities is approximately $26.5 million as of January 31, 2002.

WHEREFORE, the United States of America demands judgment:

a. Declaring that the federal tax liens that arose against all property and rights to property of CAHC as a result of the assessments are valid;

b. Declaring that the IRS’s liens have priority over the interests of all defendants, and all purported purchasers, in the Lichtenstein, Still, Rothko and Newman paintings;

c. Declaring that Gagosian’s interest in the Lichtenstein and Still paintings – or the Replacement Paintings – is subordinate and inferior to valid and subsisting federal tax liens;

d. Declaring that the defendants and all other persons whose interests in the Rothko, Lichtenstein, Newman or Still paintings (or the Replacement Paintings) are subordinate to or were recorded after the attachment of the Government’s liens, be forever barred and foreclosed from all right, title, claim, lien or other interest in the paintings;

e. Enforcing the Judgment entered by the Northern District of Illinois against CAHC and any assets, either of CAHC or subject to liens against CAHC, located in the Southern District of New York;

f. Setting aside and/or declaring fraudulent, null and void as against the United States any purported transfer or sale of the Lichtenstein, the Still, the Rothko and/or the Newman paintings, or any rights in those paintings, from CAHC to Gagosian, Gagosian Gallery, Kent, GJK, Brant or any other person or entity, pursuant to federal law and New York State Debtor and Creditor Law §§ 270-281;

g. Declaring that to the extent that any CAHC property has been disposed of to bona fide purchasers, the Court will enter judgment for the United States against the defendants due to tortious conversion, in an amount to be determined at trial;

h. Ordering that the federal tax liens on “Blonde Waiting, 1964” be foreclosed and that “Blonde Waiting, 1964” be surrendered to the Government; and ordering that the federal tax liens on “Untitled R#2, 1947” be foreclosed and that “Untitled R#2, 1947,” or the Replacement paintings, be surrendered to the Government; and/or ordering Gagosian to pay the Government $7,562,884.00 plus costs and interest since 1993, pursuant to 26 U.S.C. § 6332(d)(1);

i. Enforcing the Indemnity Agreements against Gagosian and Brant, in an amount to be determined at trial;

j. Ordering the defendants to pay restitution to the Government to remedy their unjust enrichment at the expense of the Government, in an amount to be determined at trial;

k. Declaring that Gagosian and Brant were formerly the alter-egos of CAHC, and that GJK is currently the alter-ego of CAHC, and that all are personally liable for CAHC’s tax liabilities;

l. Enjoining Gagosian from removing “Blonde Waiting” or the Replacement Paintings from the Southern District of New York pending resolution of this case;

m. Ordering the defendants to pay the Government’s attorney’s fees pursuant to New York State Debtor and Creditor Law § 276-a; and

n. Granting such further relief as the Court may deem just.

Dated: New York, New York
March 19, 2003

Respectfully submitted,

JAMES B. COMEY
United States Attorney for the
Southern District of New York
Attorney for the United States of America By:

NICOLE GUERON (NG-7682)
Assistant United States Attorney
33 Whitehall Street, 8th Floor
New York, New York 10004
Telephone: (212) 637-2699

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