It is a fairly common practice for individuals purchasing pleasure yachts to take calculated steps to minimize sales taxes on their purchases. In fact, a simple “Google” search on the subject reveals many websites offering free advice on this issue. One of the tactics suggested by several websites seems fairly simple: instead of the individual purchasing the yacht, the individual forms a corporation, and the corporation purchases the yacht.
First and foremost, the author strongly recommends that any individuals considering purchasing a yacht seek the advice of legal counsel. The author specifically recommends seeking the advice of both a tax attorney and a litigation attorney. Why? A tax attorney can offer qualified legal advice concerning the sales tax issues surrounding the purchase. A litigation attorney can advise that structuring a purchase through a corporate entity can have significant non tax-related implications, including a complete bar against the recoverability of an entire class of damages.
In Kelly v. Porter, Inc., 687 F. Supp. 2d 632 (E.D. La. 2010), the Eastern District of Louisiana made it clear that individuals who purchase recreational vessels through corporate entities cannot recover for any emotional distress or loss of enjoyment that the individual LLC member sustains when the vessel is damaged. The Kelly plaintiff wished to purchase a yacht for his own personal use. In an attempt to minimize the sales tax on that purchase, the Kelly plaintiff formed a new limited liability company (LLC) and named himself the sole member. Although the yacht was titled in the name of the LLC, the Kelly plaintiff considered himself to be the “true” owner of the yacht.
Shortly after it was purchased, the yacht was extensively damaged when it took on water while docked in its slip. The Kelly plaintiff and the LLC filed suit against the defendants alleging that they sustained “emotional damages” and “loss of enjoyment” due to the yacht being damaged. In response, the defendants filed a motion for summary judgment seeking to have all of the claims of the individual plaintiff dismissed for lack of standing. The defendants cited La. R.S. 12:1329, which states that the members of a LLC do not have an ownership interest in property owned by the LLC. Although the Kelly plaintiff attempted to claim that he was the “equitable” owner of the yacht, the Court disagreed and dismissed all of his claims.
Additionally, the defendants sought to have the LLC’s claims for “emotional damages” and “loss of enjoyment” (i.e., “non-pecuniary damages”) dismissed as well. The Court dismissed those claims, citing a litany of cases holding that corporations “cannot recover non-pecuniary damages such as loss of enjoyment or emotional damages.”
This decision makes it clear the Courts will not allow would-be yacht purchasers to “have it both ways.” Therefore, the author suggests that individuals considering purchasing a yacht should carefully consider all of the consequences of purchasing a yacht through an LLC and make a well-informed decision.