Judge levels tax fraud charge at ABQ attorney

A federal bankruptcy choose wrote in a court order that notable Albuquerque lawyer Will Ferguson applied shell organizations to prevent shelling out condition and federal taxes, together with excise taxes on expensive cars and trucks for his individual collection.

Decide David Thuma of the U.S. Personal bankruptcy Court docket District of New Mexico uncovered that Ferguson improperly claimed sole ownership of Motiva Overall performance Engineering LLC, “allowing him to deduct all of its losses” on his tax returns, even nevertheless the corporation experienced a few homeowners.

“Between 2016 and 2020, Ferguson deducted $1,289,941 from his profits for Motiva’s losses,” Thuma wrote in a 34-page viewpoint. At the time, Ferguson owned 65% of Motiva, not 100%, Thuma wrote.

“At a 37% marginal tax charge, the outcome is an poor reduction of $167,047 in federal money tax, with each other with an analogous underpayment of condition income taxes,” Thuma wrote. “Federal tax evasion is a serious issue.”

Ferguson is the owner and president of Will Ferguson & Associates, a person of New Mexico’s greatest individual injury legislation companies.

Ferguson responded that as Motiva’s sole investor, he lawfully deducted all of Motiva’s losses by agreement with the other proprietors of the limited liability corporation.

“They didn’t have any expenditure in the organization,” Ferguson stated in a cellular phone job interview. “So the working losses in those years that the business incurred operating losses have been placed on my tax return. The testimony was very clear that that was the agreement.”

Thuma also identified that “Ferguson applied Motiva to stay away from shelling out condition excise taxes by saying that Motiva owned vehicles that Ferguson meant to be element of his private collection.”

The selection provided at minimum 23 automobiles with a whole acquire rate of about $1.4 million, which include a Rolls Royce Ghost, 4 Jaguars, two Ferraris and a 1936 Packard, the judge wrote.

Assuming an normal excise tax of 3.5%, Ferguson avoided paying out about $49,000 to the state, Thuma believed.

The truth that Ferguson titled autos below the Motiva supplier license belies his assert that the vehicles do not belong to Motiva, Thuma wrote.

“Ferguson is barred from telling this Courtroom that Motiva does not personal the Subject matter Autos, due to the fact he earlier represented to the New Mexico Taxation and Revenue Division that Motiva did individual them,” Thuma wrote. “Ferguson created his bed when he avoided shelling out excise tax on the Issue Cars and trucks. Now he will have to lie in it.”

Thuma handed down the order Oct. 7 in Motiva’s Chapter 7 personal bankruptcy case subsequent a 6-day bench demo in August. He also ordered Ferguson to fork out a $575,000 judgment for transferring Motiva’s belongings to one particular of his other firms “without obtaining affordable compensation for Motiva.”

Ferguson filed a movement in Oct disputing Thuma’s conclusions and asking the judge to rethink his feeling and judgment. A listening to is scheduled Dec. 2 to think about the motion.

Motiva’s insolvency is a critical challenge due to the fact a 2nd Judicial District Courtroom issued a six-figure judgment in opposition to Motiva.

Creig Butler sued Motiva in 2017 alleging the firm botched an enhance to his 2009 Hummer H3. A jury returned a verdict versus Motiva in Oct 2018 ensuing in a $292,000 judgment towards the corporation.

“The judgment caught Ferguson by shock,” Thuma wrote, for the reason that Motiva held title to a variety of luxurious vehicles bought with Ferguson’s funds. “Ferguson acted speedily,” Thuma wrote. On Nov. 1, 2018, he transferred titles of five cars with a complete acquisition expense of $609,000 to Dealerbank Money Solutions, but no funds adjusted fingers, he wrote.

Ferguson is stated as director and chairman of Dealerbank in the New Mexico Secretary of State’s corporate records.

By the time the company shut down in 2018, “Motiva had only a handful of worthless assets,” Thuma wrote.

Butler garnished Motiva’s financial institution account in December 2018 but attained significantly less than $3,000. Motiva submitted for individual bankruptcy in November 2019.

Thuma uncovered that Ferguson improperly made use of Motiva and other firms to stop payment to Butler and other collectors.

“All creditor claims towards Motiva need to have been compensated in entire,” he wrote. “Instead, creditors located they had promises in opposition to an empty shell.”

Thuma also designed Ferguson personally liable for paying Motiva’s collectors – an action termed “piercing the company veil.”

Thuma also pointed out that in May perhaps 2021, New Mexico Supreme Court justices barred Ferguson from working towards regulation for 90 times just after obtaining that he attempted to prevent paying the Butler judgment by shifting property among businesses he owned.

Ferguson contends that Motiva, Dealerbank and other enterprises associated in the dispute are legit firms that compensated creditors and carried minimal or no personal debt.

“Those firms, most of them, went on for a ten years or a lot more and experienced nothing to do with creditors,” Ferguson stated. “It’s a strange summary.”

Ferguson claimed that he and Butler were being Motiva’s only collectors, which usually means that Ferguson will acquire part of any dollars he pays toward Motiva’s money owed.

Motiva struggled since Albuquerque could not help a organization that supplied high-priced, custom-made auto modifications, he claimed.

“Here in Albuquerque, there weren’t that lots of individuals who could afford to pay for what it price tag to do that considerably do the job to a motor vehicle,” he claimed.

The 6-determine judgment in the Butler circumstance, which Ferguson known as “an outstanding amount of money of cash,” was the final blow that killed Motiva, he reported.

“The business enterprise could not start to deal with 50 percent of it,” Ferguson stated of the judgment. “There was a garnishment that cleaned out her lender account. That was the conclude of Motiva.”

Ferguson mentioned the core of Motiva’s business enterprise concerned offering automobiles on consignment for house owners. He denied that he transferred ownership of the automobiles to keep away from having to pay the judgment.

Car or truck collections are “transactional,” he said. “You obtain them and you sell them. Faster or later on they all get sold. There ended up only four or five cars that hadn’t been offered by way of the dealership,”

He also denied utilizing Motiva’s vendor tag to prevent having to pay excise taxes on cars and trucks he purchased for his have collection.

“The testimony was clear that we went by means of 40 autos or much more, advertising them off by way of the Motiva profits procedure as a result of the dealer’s license,” he stated. “There were a pair of vehicles that I utilized personally.”

What comes about when a choose accuses an individual of tax fraud?

Albuquerque lawyer Spencer Edelman, special counsel for Motiva’s U.S. individual bankruptcy trustee, mentioned he doesn’t know if Ferguson will experience lawful effects as a end result of Thuma’s ruling. Edelman also represented Butler in his lawsuit in opposition to Motiva.

“From a legal point of view, I really don’t know the remedy,” Edelman said in a phone job interview. “It’s not also good for the reason that it’s a judicial acquiring.”

Butler is not likely to receive payment pending Ferguson’s motion for reconsideration, he claimed.

Edelman mentioned he was amazed that Ferguson chose not to settle the individual bankruptcy circumstance and as a substitute acquire it to trial.

“There were sufficient opportunities for Mr. Ferguson to stay away from using this to demo,” he said. “I’m just astounded that any of this has experienced to take place. All of this was in Mr. Ferguson’s regulate to stay clear of prolonged back.”