The Waffle House Waitress Lottery Winner Shenanigans


"A verbal contract isn’t worth the paper it’s printed on."

                                                                                                            Samuel Goldwyn 

Kelly Phillips Erb a/k/a Tax Girl drolly described this recent Tax Court case on her blog for Forbes. Mr. Seward was a regular customer at the Waffle House in Grand Bay, Alabama. From time to time he would buy lottery tickets in Florida that he would share with friends and give as tips to employees at the Waffle House. (Lotteries are illegal in Alabama.) Waffle House waitress Tonda Lynn Dickerson received a lottery ticket from Mr. Seward as a tip. Tonda Lynn’s ticket from Mr. Seward won $10 million (paid over 30 years or $5 million as a lump sum) in the Florida lottery.

The other Waffle House employees claimed there was a standing verbal agreement to share any lottery winnings among them; and further, it was agreed that the winner would buy Mr. Seward a new pickup truck.

That’s not the way Tonda remembered it. She didn’t share her winnings with her co-workers. Her co-workers and Mr. Seward sued her for breach of contract and fraud. The good news for the co-workers was that the court held that there was an oral agreement to share winnings. The bad news was that, under Alabama law, contracts related to gambling (illegal in Alabama and including playing in lotteries) are unenforceable. Ouch. Your typical Pyrrhic victory - winning the battle and losing the war.

Meanwhile, back at the ranch, Tonda Lynn was doing some tax planning for her winnings. She formed an S corporation called 9 Mill, Inc. along with some members of her family. When claiming the winnings, Tonda signed the ticket in the corporation’s name. Tonda Lynn retained 49% of the stock in 9 Mill, Inc. and her parents and siblings split the remaining 51% of stock.

Enter Toya Sue Washington, an attorney with the Estate and Gift Tax Division of the IRS. Toya Sue looked at the transactions involving the corporation and transfer of ownership to family members and determined in 2007, quite rightly in my opinion, that Tonda Lynn had made taxable gifts. Toya Sue assessed Tonda Lynn $771,570 in gift tax.

Tonda Lynn challenged the IRS assessment. Her theory? She said that she and her family had an agreement that if any one of them ever won the lottery, they would share it. Sound familiar? The result? The Tax Court held that even if the family did have an agreement, just like the agreement with co-workers at the Waffle House, it would be unenforceable under the same state law that found that similar agreement to be a contract related to gambling and, thus, unenforceable. One has to wonder why she thought there would be a different result this time around.

It wasn’t a complete loss at Tax Court though. Even though Tonda Lynn was found to have made a gift, the value of the gift was discounted because at the time of the transfer, her claim was publicly embroiled in litigation with the Waffle House co-workers and Mr. Seward. Therefore, the value of 80% of the prize (the part subject to suit) was discounted 67% because of the cost, hazard and time delay of litigation. The result from the Tax Court (T.C.) is that the value of the gift was discounted 53.6%. The tax court decision came down 13 years to the day from the date of the winning ticket.

The opinion in T.C. Memo 2012-60 written by Judge Wherry is worth reading. Here are the section headings in the Findings of Fact: I. She’s Got a Ticket To Ride; II. Family Values; III. "Inc."-ing the Deal; IV. Eye on the Booty; V. House of Waffling; and VI. Looking a Gift Horse in the Mouth.

That’s not all. Before her big win, Tonda Lynn Dickerson had been married to a man named Stacy Martin, but she and Martin divorced before she won the $10 million. After she won the lawsuits brought by the co-workers and Mr. Seward, Tonda’s ex forced his way into Tonda’s pickup truck and drove her from Grand Bay across the state line to Jackson, Mississippi. Once there, Tonda pulled out a .22 caliber pistol from her purse, shot and wounded her abductor. Tonda was not charged, and Martin was expected to be charged with kidnaping.



Ex-spouse Does Not Mean Ex-beneficiary

If you are divorced, or you advise clients who are divorced, this is important. The Pennsylvania Supreme Court has ruled that the federal Employee Retirement Income Security Act (ERISA) takes precedence over the Pennsylvania statute that removes divorced spouses as beneficiaries. What this means is that unless your employer’s plan contains a provision to the contrary, if you are divorced and your ex-spouse is still named as beneficiary of your qualified plan; it is payable to the ex-spouse! That is without regard to Pennsylvania state law, without regard to any order from a Pennsylvania Court, and without regard to any provisions in a property settlement agreement or other contract. It’s really true.

It is very common for spouses to divorce but fail to update their estate plans, including beneficiary designations. This has not been a big problem because Pennsylvania law (20 Pa.C.S. § 6111.2) provides that if an ex-spouse is designated as a beneficiary on a life insurance policy, annuity contract, pension, profit-sharing plan or other contractual arrangement providing for payments to the spouse; any designation which was revocable at the time of death is ineffective, and the beneficiary designation is construed as if the ex-spouse had predeceased. If the designation or a separate contract (such as a property settlement agreement) provides that the designation is to remain in effect even after the divorce, then the designation remains effective. This statute produced the result that most people wanted: the ex-spouse is not the beneficiary. No more.

The legal issue is whether or not the federal law, ERISA, which provides that a qualified plan benefit is payable to the named beneficiary, is superior to, or "trumps" Pennsylvania state law that modifies the beneficiary based on circumstances, in this case, the divorce of the plan participant. The legal doctrine involved is called "federal preemption" and is based on the supremacy clause of the U.S. Constitution: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." In other words, certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law.

In 2001, the United States Supreme Court in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), set the precedent that any state statutes having a "connection with" ERISA plans are superseded by ERISA. David Engelhoff divorced his wife and did not change his beneficiary designations on his qualified plans. Washington state law provided that on divorce, the beneficiary designation of his wife was revoked. However, his ex-wife successfully claimed the benefit asserting that since she was the named beneficiary and ERISA preempts state law she gets the benefit.

Closer to home, the Pennsylvania Supreme Court case decided an almost identical case on November 23, 2011, in re Estate of Sauers, York County, Supreme Court of Pennsylvania, Middle District (No. 78 MAP 2009). Paul and Jodie Sauers divorced in 2002, and Paul did not change the beneficiary on a $40,000 employee group life insurance plan subject to ERISA. Paul died in 2006. The Court held that the Pennsylvania statute which provides that Jodie, now an ex-spouse, does not receive the death benefit was preempted by ERISA - the benefit was payable to her, the ex-spouse. (The only question is why in the world didn’t the lower court follow Egelhoff.)

The Court explained that the state probate law at issue "gives a Pennsylvania court the power to enjoin a plan administrator from discharging his fiduciary duties in accord with federal law, while concomitantly subjecting the plan administrator to civil liability in federal court. ...

"This Hobson's choice, of being forced to choose between applying either state or federal law, at the potential peril of disregarding a state court order to evade federal liability, is exactly what the preemption provisions of [section]1144(a) of ERISA, as interpreted by the [U.S. Supreme Court], intended to avoid. Such potential not only 'relates to,' but also surely violates, the uniformity requirements and objectives of ERISA."

What to do? If you are divorced, make sure you have changed all of your beneficiary designations.

If you are a plan sponsor, consider amending your ERISA plan to include a provision that would automatically revoke a pre-divorce spousal beneficiary designation.


Does this apply to IRAs? Probably not, because IRAs are not governed by ERISA for most issues. To be safe, change IRA beneficiaries too.