419 N. Larchmont Blvd., Suite 91
Los Angeles, California 90004
July 25, 2004
Department of the Treasury
Internal Revenue Service
Office of Chief Trial Counsel
Small Business/Self Employed Division Counsel
3018 Federal Building
300 N. Los Angeles Street
Los Angeles, California 90012
Re: Leonard Cohen vs. Commissioner (Docket No. 7024-02)
To Whom It May Concern:
I am writing with respect to the above referenced Tax Court case and related matters. I am Leonard Cohen’s personal manager and have an ownership interest in three entities with him. Those entities are Blue Mist Touring Company, Inc., Traditional Holdings, LLC, and Old Ideas, LLC. These three entities either own or sold intellectual property.
For the year 1999, Sony Music issued a 1099 to Leonard Cohen in the sum of $1 million. On January 8, 2002, IRS issued Letter No. 3219 (SC/CG) to Leonard Cohen for the year ending December 31, 1999 showing a deficiency in connection with tax form 1040. This situation was initially handled by Leonard Cohen’s personal tax and corporate attorney, Richard Westin, who then referred Cohen to Hochman Rettig.
I became particularly concerned with respect to the conduct of Leonard Cohen and his representatives in January and February 2002. The reason for this is due to hysteria that arose in connection with the “inadvertent” 1099s Sony issued to Leonard Cohen personally in the amounts of $1 million and $7 million respectively. Leonard Cohen’s tax accountant wrote and advised him that he shuddered to think of the penalties and interest due. Leonard Cohen called his tax accountant after receiving his letter to discuss the matter. This matter was then discussed, both telephonically and in emails, with Leonard Cohen, Richard Westin, and Neal Greenberg (Cohen’s financial adviser and investor). These 1099s related to a deal that Sony pursued which closed in 2001.
What concerns me specifically is the fact that the Sony deal was done with Traditional Holdings, LLC and not Leonard Cohen. The $1 million non-refundable prepayment should have either been paid to Traditional Holdings, LLC or transferred to Traditional Holdings, LLC. To complicate matters even further, the assets that were sold to Sony belong to Blue Mist Touring Company, Inc. and were not assigned to Traditional Holdings, LLC. The reason for this is due to the fact that, while Sony initially pursued this deal with Blue Mist Touring Company, Inc. (and began their due diligence with that entity), Cohen’s accountant and tax lawyer raised issues related to collapsible corporations. Richard Westin represents Leonard Cohen. He does not represent me or the entities themselves. I did provide Westin with a very limited power of attorney authorizing him to prepare and file the Traditional Holdings, LLC formation documents with the State of Kentucky. I also agreed, after Cohen instructed him to do so, to permit Richard Westin to prepare my Indemnity Agreement with respect to my investment in Traditional Holdings, LLC via a promissory note. I do not understand how an individual invests in a company via a promissory note and, at the same time, receives distributions with which to the payments. I am enclosing Richard Westin’s March 6, 2002 letter summarizing this matter. I specifically requested that he write this letter to avoid any future confusion between me and Leonard Cohen. According to the corporate records, I receive $20,000 and $24,000 which pays the promissory note and taxes. I also receive $240,000 year (from profits) to pay whatever taxes Westin advises are due with respect to Traditional Holdings, LLC. Richard Westin handles the Traditional Holdings, LLC tax returns and prepares the K-1s. While I am to receive 100% of the profit (and this was the agreed upon amount Cohen and Westin arrived at), I am unable to obtain financial statements and/or profit and loss statements from Neal Greenberg. And, while Richard Westin and Neal Greenberg are supposed to handle all loan documentation (Greenberg would have those details), most of Leonard Cohen’s loans (totaling millions) from Traditional Holdings, LLC remain undocumented. I would also like to note that Neal Greenberg’s financial statements are incoherent and originally co-mingled Leonard Cohen’s personal accounts; his charitable remainder trusts; and the Traditional Holdings, LLC accounts on one statement prepared for Leonard Cohen personally. Greenberg also provides a courtesy monthly email that includes the loans which he and Westin have repeatedly confirmed are assets of Traditional Holdings, LLC. I am alarmed by the complete lack of attention to corporate governance. I also enclose herewith Neal Greenberg’s January and June 2004 letters to Leonard Cohen raising “IRS warnings” and dangers. I’ve reviewed these letters with Leonard Cohen and he advised me not to inform Neal Greenberg of any future income. That would include the studio album that will be delivered; his plans to tour behind that album; and the third intellectual property deal we are pursuing. That deal is also complicated because Leonard Cohen is once again demanding unattractive stock deals. Leonard Cohen continually advises me that he does not want to pay ordinary income taxes. I find these comments alarming in light of some of the other activity.
I have no expertise in IRS or tax matters and find a great deal of the discussions about tax matters thoroughly confusing if not downright deranged. Some of the information I receive is incoherent. I do not handle IRS, tax, accounting, financial, investing, legal or inadvertent 1099 matters. I also do not handle financial statements, financial reports, loan documents, or promissory notes. Leonard Cohen has a team of professional representatives handling those matters. I am enclosing an email dated February 12, 2002 between me, Leonard Cohen, and Richard Westin that is self-explanatory and addresses some of my concerns.
On January 17, 2003, Hochman Rettig wrote David R. Jojola of the Los Angeles Office of the Chief Trial Counsel. This matter was handled by Steve Blanq at Hochman Rettig. I had concerns about Traditional Holdings, LLC and the private annuity agreement. I am enclosing many of the corporate records for these entities; the Annuity Agreement; and my Indemnity Agreement. I am also enclosing the stock certificates, non-revocable assignments, and other documentation related to my ownership interest in Blue Mist Touring Company, Inc., Traditional Holdings, LLC, and Old Ideas, LLC which was formed in June 2004 in Delaware (by Richard Westin) and owns the intellectual property associated with Cohen’s forthcoming studio album.
After I addressed my concerns with Steve Blanq, I sent him some of the Traditional Holdings, LLC documents and the Annuity Agreement. I then mentioned to Richard Westin that I spoke to Steve Blanq about these matters. I received a phone call from Steve Blanq advising me that he spoke to Richard Westin who informed him that I do not have attorney/client privilege and therefore Steve Blanq may not discuss these matters with me. Given the fact that I have an ownership interest in Traditional Holdings, LLC, I find that statement alarming. Leonard Cohen personally wrote Richard Westin and Neal Greenberg wrapping them in attorney/client privilege and excluding me.
Hochman Rettig’s letter addressed the factual and legal analysis of the Cohen v. Commisioner matter (Docket No. 7024-02) as follows: “Leonard Cohen, through his representatives, began negotiations in 1999 with Sony Music International ("SMI") for a buyout of his SMI master recordings catalog. In an effort to secure that SMI was serious about the buyout and to secure future performance, Mr. Cohen demanded a deposit of $1,000,000. Ultimately, SMI agreed to this request and on November 5, 1999, wired Mr. Cohen $1,000,000. Accompanying the wire transfer was a Ietter dated November 5, 1999 which is attached hereto as Exhibit A. The letter from Paul Gilbert of SMI provides: ‘This amount is deemed a partial prepayment against the proposed $8 million buy-out of Leonard's future royalty interests in his master recordings and compositions under all of his agreements with Sony Music and Sony/ATV.’ The factual basis for treatment as a deposit is further supported by Mr. Gilbert's letter dated April 1, 2002 (attached hereto as Exhibit B) which provides: ‘. . . this letter is to confirm that the $ 1,000,000 paid to you by Sony Music Entertainment, Inc. (“SMEI") in November of 1999 was a deposit towards a possible royalty buyout …’”
This is not my understanding with respect to the $1 million prepayment. I would like to keep this letter confidential because I am convinced that I would lose my job if Leonard Cohen, or his representatives, were to find out that I contacted IRS. There has been so much paranoia and hysteria on the part of Leonard Cohen and his representatives over this matter that I can conclude nothing other than some type of egregious tax fraud has occurred.
The history of this deal, and specifically the $1 million non-refundable prepayment, actually began when Leonard Cohen actively began pursuing intellectual property deals. He closed the first deal, with Stranger Music, Inc., in 1996. He then actively began pursuing other intellectual property which included a possible bond securitization deal. As of November 1999, Leonard Cohen planned to close a bond securitization deal with CAK. In order to pursue that deal, Cohen formed LC Investments, LLC. CAK demanded a bankruptcy proof entity. However, SOCAN (the Canadian performing rights society) refused to pay writer share of royalties to a company not owned 100% by the writer, Leonard Cohen. Therefore, it was decided and agreed (by Cohen and his representatives) that LC Investments, LLC would collect the SOCAN royalties. These assets are owned by Blue Mist Touring Company, Inc. which is true for all intellectual property excluding the forthcoming the intellectual property related to the forthcoming studio album that will be delivered to Sony in the near future. I am enclosing Leonard Cohen’s declaration in the CAK litigation that ensued and IRS can review the CAK litigation documents that were filed in the Southern District of New York (Docket No. 1:00-cv-01068-CBM).
What concerns me about the letter Hochman Rettig wrote is this paragraph: The legal authority is derived from the Supreme Court decision in Commissioner v. Indianapolis Power & Light Co., 493 U-S. 203, I 10 S. Ct. 589 (1990). The Court created a distinction between the taxation of advance payments and the taxation of refundable deposits, although the Court confirmed that advance payments are generally taxable and defined "advance payment" as a non-refundable payment. The Court, however, held that deposits are not taxable. The Court defined "deposits" as refundable payments that are made to secure the payor's performance of its legal obligations under the contract. Please note that the Court also found that a deposit is not taxable even if the payor elects to apply the deposit against amounts owed to the payee. Thus, if the payor fulfills its obligations under the contract, the deposit is refunded. That is the exact scenario presented in this matter. This analysis is also consistent with the United States Tax Court's longstanding treatment of real estate lease deposits where the Court has distinguished between a sum designated as a prepayment of rent (taxable upon receipt) and a sum deposited to secure the tenant's performance of a lease agreement. J & E Enterprises, Inc, v. Commissioner.”
The reason this paragraph concerns me is that Sony personally contacted me about pursuing the 2001 intellectual property deal with Leonard Cohen. Stuart Bondell, Sony Music Business Affairs, explained to me that Sony did not want Leonard Cohen pursuing a bond securitization deal. Evidently they had concerns about establishing artist precedent for these types of deal and were specifically concerned about not having the ability to pay artist record advances. As Stuart Bondell explained, advances are the currency of the music industry and permit Sony (and others) to encourage artists to submit their contractually obligated albums. I phoned Leonard Cohen and explained that Sony wanted to pursue the intellectual property deal with him. Cohen was somewhat worried that Sony was making an offer and could later change their minds. Therefore, he advised me that he would be willing to forfeit the CAK bond securitization deal if Sony paid him a substantial non-refundable prepayment against the $8 million deal price. The contractual details had to be resolved and negotiated. I phoned Stuart Bondell back and passed along Cohen’s message and Sony agreed to pay the $1 million non-refundable prepayment Cohen requested. Therefore, from my perspective, Cohen received $1 million in income from Sony in 1999. However, the assets were owned by Blue Mist Touring Company, Inc. at the time. As of 2001, Richard Westin had formed Traditional Holdings, LLC who ultimately pursued the stock deal Leonard Cohen personally demanded.
Your October 8, 2002 letter to Richard Westin requests all documents related to the $1 million payment including correspondence, contracts, agreements, royalty obligations, loan documents, emails, letters, and checks. While I am enclosing a substantial amount of evidence, IRS would literally have to make arrangements to come into my management offices and go through the files. They are voluminous and include the corporate files and corporate books and records. While I am not involved with this IRS and/or Tax Court matter at all, I do believe that information is being concealed from the IRS and that makes me extremely uncomfortable.
It was my understanding that Richard Westin and Ken Cleveland, Cohen’s accountant, decided to handle the $1 million as a loan on Cohen’s personal tax return. I was not involved in that discussion but was on a conference call when they two of them confirmed this and asked me to call Leonard Cohen to see if he agreed. I then phoned Leonard Cohen personally; he confirmed that he wanted the $1 million handled as a loan; and I called Westin and Cleveland back and confirmed this with them.
This essentially sums up my concerns about the $1 million prepayment; $7 million inadvertent 1099s; and the fact that the assets are owned by Blue Mist Touring Company, Inc. Initially, after the non-revocable assignments were executed by Cohen and me, Richard Westin advised us to begin depositing all royalty income to Blue Mist Touring Company, Inc. At a later date, he advised me (and some of this is in writing) that those deposits should be explained as inadvertent. This situation also causes me concern because the income was deposited to Blue Mist Touring Company, Inc. and Westin determined that Leonard Cohen personally should issue the 1099s. Richard Westin also advised me to rip up the SOCAN and writer share assignments with respect to Blue Mist Touring Company, Inc. I took copies home and enclose copies herewith.
Another ongoing issue relates to where the offices for these entities are. There are no offices. I have continuously advised Richard Westin that my personal management offices are not the corporate entities’ offices. These entities use my P.O. Box for their corporate office addresses. Traditional Holdings, LLC’s corporate office is listed as Richard Westin’s home address in Kentucky. Most of these entities are Delaware entities. I do not know why Leonard Cohen and his representatives decided to form Traditional Holdings, LLC in Kentucky. I am enclosing letters Richard Westin prepared for Leonard Cohen and me with respect to the initial proposals with respect to the use of an annuity. Leonard Cohen rejected the first proposal and did not want his adult children involved in any entity he has an ownership interest in.
Please see evidence enclosed.
Thank you for your attention to this matter and, if I uncover additional information, I will submit that to Internal Revenue Service as well.
Very truly yours,