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F.D.I.C. v. AMFIN FINANCIAL CORP.

No. 13-3669.

757 F.3d 530 (2014)

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of AmTrust Bank, Petitioner-Appellant, v. AMFIN FINANCIAL CORPORATION; AmFin Real Estate Investments, Inc.; AmFin Insurance Agency, Inc.; AmFin Investments, Inc.; AmFin Properties, Inc.; AmFin Management, Inc., Respondents-Appellees.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 8, 2014.

Rehearing En Banc Denied August 19, 2014.

Attorney(s) appearing for the Case

ARGUED: Joseph Brooks , Federal Deposit Insurance Corporation, Arlington, Virginia, for Appellant. Pierre H. Bergeron , Squire Sanders (US) LLP, Cincinnati, Ohio, for Appellees. ON BRIEF: Joseph Brooks , Federal Deposit Insurance Corporation, Arlington, Virginia, for Appellant. Pierre H. Bergeron , Lauren S. Kuley , Squire Sanders LLP, Cincinnati, Ohio, Philip M. Oliss, Squire Sanders LLP, Cleveland, Ohio for Appellees.

COOK, J., delivered the opinion of the court, in which McKEAGUE, J., joined and GILMAN, J., joined except as to Part II.B. GILMAN, J. (pp. 12-14), delivered a separate concurring opinion.

OPINION

COOK, Circuit Judge.

This case presents the question of who owns a $170 million tax refund: a parent corporation that filed a consolidated tax return on behalf of its subsidiaries and to whom the IRS issued the refund, or the subsidiary whose net operating loss generated the refund. The answer depends on whether the parties had a debtor-creditor relationship — in which case the parent corporation owns the refund but with an obligation to repay...

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