United States Court of Appeals,

Fifth Circuit.

No. 93-8361

Summary Calendar.

Emmanuel A. BALLARD, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

March 28, 1994.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

When a partnership failed to pay its assessed payro ll taxes, the government levied on the

personal property of the plaint iff, asserting that the plaint iff was a general partner in the partnership

and was thus liable for its debts an d obligations. The plaintiff filed an action for wrongful levy,

protesting that he was not a general partner. After a bench trial, the district court held, i nter alia, that

the plaint iff w as a general partner in the partnership and was thus liable for the taxes. Finding no

reversible error, we affirm.

I

On September 1, 1983, Messrs. Saks, Spruill, and Dominguez fo rmed Omni/Vanir Vista

Verde South Joint Venture ("Omni/Vanir") to manage certain real estate development projects. On

August 1, 1984, the three joint venturers, or partners, amended the joint venture agreement to make

Emmanuel Ballard and a Mr. Herrera as partners. The amendment provided, i nter alia, that Ballard

would: (1) receive a five percent share in the profits and losses of Omni/Vanir; (2) not have to make

a capital contribution in exchange for this interest; and (3) not share in the obligations of Omni/Vanir.

On October 24, 1984, the parties amended the joint venture agreement to designate Saks and Spruill

as managers for all major decisions of the joint venture. Although listed as an operations manager,

Ballard could not effectively hire, fire, or set salaries, nor could he write checks or make any financialcommitments on behalf of the joint venture. Ballard did, however, assist in managing the projects

owned by the joint venture. Further, Ballard personally guaranteed millions of dollars of real estate

loans for Omni/Va nir. Alt hough Ballard understood that the other partners would assume the

liabilit ies, that understa nding was o nly among the partners themselves, and not between the

Omni/Vanir and third parties, including the banks that made the loans. Omni/Vanir filed a partnership

tax return that listed Ba llard as a part ner. Further, Ballard stated that he thought of himself as a

partner even though he did not believe he would be liable for any partnership debts.

On January 27, 1986, Saks, Spruill, and Dominguez signed a letter agreement, identified by

its own terms as an "offer" by Dominguez to purchase the joint venture interests of Saks and Spruill.

The agreement was conditioned on Saks and Spruill's abilit y to obtain Ballard's c o nveyance of his

interest in Omni/Vanir to Dominguez. The letter agreement provided that Dominguez acquired all

management and control upon signing and would assume the debts and obligations—including those

incurred between January 27 and closing—upon closing. Ballard moved out of the Omni/Vanir office

on this date and performed no further active management role in the partnership. The sale, however,

did not close until June 12, 1986, and between January 27 and June 12, Ballard may have received

some partnership distributions. No document reflects when Ballard assigned his five percent interest

in Omni/Vanir to Dominguez.

II

On May 14, 1990, the Internal Revenue Service ("IRS") assessed employment t ax liabilit ies

against Omni/Vanir for the two quarters ending June 30, 1986. To collect the assessment, the IRS

filed notice of a federal tax lien against each of the Omni/Vanir partners, including Ba llard. On

January 31, 1991, the IRS served notice of levy on Alamo Title Company and seized, pursuant to the

levy, a $51,667 real estate commission fee belonging to Ballard.

On June 17, 1991, Ballard filed this wrongful levy action pursuant to 26 U.S.C. § 7426

asserting that he owes no part of Omni/Vanir's tax liabilit y because he was not a partner in that entity.

Aft er a bench trial, the district court held that because Ballard was a partner in Omni/Vanir as a1 We note that the district court also held, erroneously, that it did not have jurisdiction under 26

U.S.C. § 7426. Section 7426 allows a party "other than the taxpayer" to bring a wrongful levy

action against the United States. In this case, the Omni/Vanir joint venture was the "taxpayer"

because it was the employer upon which 26 U.S.C. § 3403 imposed liability for the payroll taxes.

Thus, Ballard was a party other than the taxpayer and could bring this section 7426 action. On

appeal, the government concedes this issue. matter of federal law, he is liable for the joint venture's employment taxes. 1

III

On appeal, Ballard argues that state law controls whether he was a partner in Omni/Vanir,

and that under Texas law he was not a partner. The government responds that federal law governs

wh et her Ballard was a partner for tax purposes. The government argues that under federal law,

which defines partnerships more broadly than state law, Ballard was a partner and thus jointly and

severally liable for any taxes owed by the joint venture. We review the district court's findings of fact

for clear error and its legal conclusions de novo. Colonial Penn Life Ins. Co. v. Market Planners Ins.

Agency, Inc., 1 F.3d 374, 376 n. 3 (5th Cir.1993). We may affirm, however, on grounds other than

those relied upon by the district court. J .B.N. v. Homco Int'l, Inc., 853 F.2d 337, 345 (5th Cir.1988).

IV

It is not contested that the Omni/Vanir joint venture was liable, as an employer, for withheld

payroll taxes under 26 U.S.C. § 3403 and that for all purposes of this opinion the joint venture was

a partnership. (Under both federal and Texas law, a joint venture is treated as a partnership, and a

joint venturer as a partner. S ee 26 U.S.C. § 7701(a)(2) (1988); C oplin v. Texas, 585 S.W.2d 734,

735 (Tex.Crim.App.1979)). Although federal law defines partnerships for purposes of applying the

partnership income taxation scheme, see 26 U.S.C. § 7701(a)(2) and Treas.Reg. § 301.7701-3(a),

it is st at e law t hat determines when a partner is liable for the obligations—including employment

taxes—of his partnership. S ee United States v. Hays, 877 F.2d 843, 844 n. 3 (10th Cir.1989)

("Courts have assumed that the liabilit y of a general partner for the tax obligations of the partnership

is determined by state law rather than federal law."); C alvey v. United States, 448 F.2d 177, 180 (6th

Cir.1971) ("[T]he Federal Revenue Code makes no specific reference to the liabilit y of partners as

individuals [for partnership tax obligations].... The governing law pertaining to t he instant case isrepresented by two sections of the Uniform Partnership Act adopted by Michigan...."). Under Texas

law, a j o int venturer, or partner, is jointly and severally liable for all the debts of his partnership.

Tex.Civ.Rev.Stat.Ann. art. 6132b § 1 5 (West 1970). Further, this liability to third parties for the

debts of the partnership exists notwithstanding any express stipulation among the partners as to how

the partners will bear partnership liabilit ies. H olliday v. Taylor, 249 S.W.2d 941, 944

(Tex.Civ.App.1952, writ ref'd n.r.e.).

Under Texas law, a person is a member of a joint venture when he shares with the other joint

venturers the following four attributes: (1) a community of interest; (2) an agreement to share

profits; (3) an agreement to share losses; a nd (4) a mutual right of control or management. J ames

v. Nico Energy Corp., 838 F.2d 1365, 1373 (5th Cir.1988); Coastal Plains Dev. Corp. v. Micrea,

Inc., 572 S.W.2d 285, 287 (Tex.1978). Under the joint venture agreement, Ballard expressly shared

in the profits and losses of Omni/Vanir. Thus, the question before this court is whether Ballard

shared a community of interest with the other partners and whether his participation in management

was sufficient to make him a joint venturer.

First, Texas defines a "community of interest" as "a commonly shared incentive between the

parties as to the progress and goals of the joint venturers." Hasslocher v. Heger, 670 S.W.2d 689,

693 (Tex.App.1984, wri t ref'd n.r.e.) (ci ti ng W .H. Hodges & Co. of Alexandria, Inc. v. Donley

County State Bank, 407 S.W.2d 221, 224 (Tex.1966)). In the instant case, it is not disputed that all

the partners in Omni/Vanir wanted al l o f the projects owned and operated by the joint venture to

make as much financial progress as possible. The commonality of this goal is underscored by two

facts: (1) all of the partners, including Ballard, shared profits from the various projects owned by the

partnership, and (2) all of the partners, including Ballard, guaranteed loans for the financing of the

projects. Thus, there was a community of interest of all the partners, including Ballard, in the joint

venture's properties. See Russell v. French & Assocs., Inc., 709 S.W.2d 312, 315 (Tex.App.1986,

writ ref'd n.r.e.) (holding that investors in oil well leases shared a "community of interest" in the oil

wells).

Second , Texas defines mutual right of control or management broadly. In R ussell, 7092 Ballard also argues that the district court erred in placing the burden of proof on him to show

that there was no nexus between the joint venture and his funds, i.e., that he was not a partner. In

Century Hotels v. United States, 952 F.2d 107, 109 (5th Cir.1992), we stated that the plaintiff in

a wrongful levy action bears the initial burden of showing that he had an interest in the funds

seized. It is undisputed that Ballard owned the funds. Next, we stated that the IRS bore the

burden of showing a nexus between the funds and the taxpayer. Id. The IRS bore this burden

with extensive evidence that Ballard was a partner in Omni/Vanir. Finally, once the IRS shows

nexus, the plaintiff bears the burden of showing that the levy was wrongful—that there was no

nexus between the joint venture and his funds. Id. In this case, the district court held that Ballard

did not show by a preponderance of the evidence that his association with Omni/Vanir terminated

on the date of the letter agreement—January 27, 1986. In effect, this holding was that the IRS

had shown Ballard's nexus with the joint venture initially existed and that Ballard then failed to

proved it terminated. This was a correct application of the legal standard.

Further, we hold that the district court was not clearly erroneous in finding that

Ballard did not prove his liability for Omni/Vanir obligations ended on January 27, 1986.

The letter agreement specifically provided that the old partners retained liability for

partnership debts incurred between January 27 and the closing date. The issue in this case

concerns the partnership liability for employment taxes incurred between January 1 and

June 30 of 1986. Although the joint venture agreement stated that Dominguez would

indemnify the partners for such interim liabilities, such indemnification does not relieve

Ballard of his primary liability. See Hutcheson v. Estate of Se'Christ, 459 S.W.2d 495,

496-97 (Tex.Civ.App.1970, writ ref'd). S.W.2d at 315, the Texas Court of Appeals held that an entity that acted as an oil field operator and

that could be removed by the managing partner, nonetheless, had the requisite management or control

under the joint venture agreement needed to qualify as a joint venturer. Similarly, in this case, Ballard

acted as an operations manager under the joint venture agreement and even though his decisions were

subject to reversal by Saks and Spruill, he had the requ isit e management authority to qualify as a

partner in Omni/Vanir. Although Ballard did not hire or fire employees o r make financial

commitments for the partnership, he did actively manage real estate projects for the partnership. S ee

Holliday, 249 S.W.2d at 942, 944 (holding two individuals were partners even though another

partner had the ultimate right of control over the partnership). Thus, we hold that Ballard possessed

the degree of management or control in Omni/Vanir necessary to qualify him as one of its partners.

Consequently, we hold that under Texas law Ballard was a joint venture r, or partner, i n

Omni/Vanir and, as such, is jointly and severally liable for the venture's employment tax liabilit y. S ee

Underwood v. United States, 118 F.2d 760, 761 (5th Cir.1941) ("The partners were liable individually

for any debts contracted in the name of the [partnership] and for any taxes validly assessed against

it."). 2V

For the foregoing reasons, the judgment of the district court is

AFFIRMED.