Boerger v. Heiman


11/12/08 – 11/12/08


Case Description: In 2004, Petitioner received an offer to buy a set of apartments he owned for $26 million. In response to the offer, Petitioner asked his accountant about the tax implications of such a sale. She advised that, because of the corporate structure, he would be subject to double taxation on the capital gains from the sale. The accountant testified that she never mentioned the double taxation of capital gains in prior years, during the discussions about the possibility of electing Subchapter S status in the future. Although she realized that a sale would result in double taxation, she did not mention it because she was not aware Petitioner was considering selling his property.

Petitioner decided not to sell the property after his attorney and CPA, confirmed the fact that he would suffer double taxation. His Attorney advised that he could avoid the tax problem by electing Subchapter S status and then holding the property for another 10 years. In January 2005, Petitioner filed this action against Heiman, Thompson, and Patone, alleging breach of contract, professional negligence, and negligent misrepresentation arising from the failure to elect Subchapter S status. Heiman and Thompson filed third party complaints against Patone and her business, Patone & Patone, LLC. After discovery was concluded all defendants moved for summary judgment, on various grounds, including the expiration of the applicable statute of limitations. The Superior Court granted the motions in two decisions. The first addressed the negligence and contract claims, and the second addressed the remaining claim for declaratory relief.

Proceeding Description: After the Petitioner’s case was dismissed on summary judgment, Petitioner filed an appeal. In this proceeding, the Petitioner argues that the Superior Court erred and that summary judgment should not have been granted because issues of material fact exist.

Outcome: The Supreme Court reverses the Superior Court’s decision and remands the case.


Recording Disclaimer: This proceeding was recorded in full.

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