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United States v. RaPower-3, LLC

United States District Court, D. Utah, Central Division

August 22, 2018




         This order GRANTS the United States' second motion to freeze Defendants' assets and appoint a receiver, ECF Doc. No. 414, filed June 22, 2018.

         On November 23, 2015, the United States filed its complaint against Defendants, seeking to enjoin Defendants from organizing, promoting, and selling the “solar energy scheme” that they have been promoting since on or before 2010.[1] The United States also seeks disgorgement of Defendants' ill-gotten gains from the promotion of their abusive tax scheme.[2]

         The United States previously moved for an order freezing the assets of Defendants Neldon Johnson, RaPower-3, and IAS's assets and for an order appointing a receiver on November 17, 2017.[3] On March 2, 2018, the United States' motion was denied without prejudice in part because the United States relied upon the facts set forth in its motion for partial summary judgment including the “disputed material facts as to Defendants' knowledge at the time they made certain statements.”[4] The Motion for Partial Summary Judgement was also denied in that same order.[5] Trial is now completed. The Court made extensive findings on the record at the end of trial;[6] intends to enter detailed Findings of Fact and Conclusions of Law including a disgorgement order; and has already entered an interim injunction based on summary findings[7]and a preservation order.[8] On the basis of the evidence adduced at trial, as laid out below, the United States' motion is granted.

         I. Statement of Facts ................................................................................................................... 3

         II. The injunctive relief requested by the United States - in the form of an asset freeze and appointment of a receiver - is necessary or appropriate to enforce the Internal Revenue Laws. . 13

A. The United States has succeeded on the merits. . .................................................. 15
B. The United States will suffer irreparable injury if an order granting the asset freeze and appointing a receiver is not issued. . ................................................................. 16
C. The balance of harm to the United States in not issuing the injunctive relief outweighs the harm to be caused to Defendants by issuing the requested relief. . ............. 18
D. An injunction will benefit, not disserve, the public interest. . ............................... 19
E. A receiver is necessary or appropriate to effect the asset freeze. . ........................ 20

         III. Order .................................................................................................................................. 26

         I. Statement of Facts

         1. Neldon Johnson is and has been the manager, and a direct and indirect owner of, RaPower-3, LLC, International Automated Systems, Inc. and LTB1, LLC (among other entities). He is the sole decision-maker for each entity.[9]

         2. Johnson claims to have invented certain solar energy technology that involves solar thermal lenses placed in arrays on towers.[10]

         3. In or around 2006 through 2008, Johnson directed IAS to erect, at most, 19 towers on “the R&D Site” near Delta, Utah, in Millard County.[11]

         4. Johnson also directed that IAS install solar lenses in those towers.[12]

         5. To make money from this purported solar energy technology, Johnson decided to sell a component of the purported technology: the solar lenses.[13]

         6. Johnson recognized that his strength was not in sales, so he directed that IAS use independent sales representatives to sell lenses.[14]

         7. Johnson drafted some promotional materials to describe the arrangement, “IAUS Solar Unit Purchase Overview” and IAS “Solar Equipment Purchase.”[15]

         8. Johnson showed IAS salespeople these descriptive materials about the structure of the transaction, the purported technology, and the federal tax benefits that Johnson said a customer could lawfully claim when he bought a lens from IAS.[16]

         9. He told IAS's initial salespeople what he understood the tax laws to mean.[17]

         10. R. Gregory Shepard has been an IAS shareholder since the mid-1990s.[18] He became one of IAS's initial salespeople in or around September 2005, and began selling solar lenses.[19]

         11. Shepard's information about Johnson's purported solar energy technology came from Johnson or members of Johnson's family, and Shepard's own observations on his site visits over the years.[20]

         12. Johnson told Shepard that a depreciation deduction and the solar energy tax credit are related to the sale of lenses.[21]

         13. Johnson created, owns, and controls at least three entities that sell or have sold solar lenses: SOLCO I, [22] XSun Energy, [23] and RaPower-3, LLC.[24] SOLCO I and XSun Energy are not defendants in this action.

         14. Johnson created RaPower-3 in 2010. He is it manager and the sole decision-maker for the company.[25]

         15. Once formed, RaPower-3, rather than IAS, sold solar lenses to individuals.[26]

         16. RaPower-3's only business activity is selling solar lenses through a multi-level marketing (otherwise known as “network marketing”) approach to increase sales.[27]

         17. Selling lenses through RaPower-3 gave Johnson “much needed revenue” to continue his operations.[28]

         18. Johnson directed RaPower-3 to create a site online ( where a customer can access and sign a contract to buy lenses and sign other transaction documents that Johnson provides (described below).[29]

         19. Among other things, Shepard created the website[30] and moderates an online discussion board called “IAUS & RaPower[-]3 Forum.”[31]

         20. Shepard gets paid for his work with RaPower-3 through his company, Shepard Global.[32]

         21. On the RaPower-3 website, Shepard describes the solar energy technology (including the solar lenses) and the transactions underpinning the solar energy scheme, promotes sales, and provides links to the website with the transaction documents.[33] Shepard also uses the IAUS and RaPower-3 Forum and emails to communicate with RaPower-3 members and prospective members.[34]

         22. Shepard also organizes groups of people to visit the R&D Site, the site where component parts of the purported solar technology system are manufactured (the “Manufacturing Facility”), and the site on a large field with a few semi-constructed component parts (the “Construction Site”).[35]

         23. Shepard directs customers to use tax return preparers who are part of the solar energy scheme, like John Howell in Wichita Falls, Texas; Kenneth Alexander in Florida; and Richard Jameson in St. George, Utah.[36]

         24. From 2009 through 2016, RaPower-3 had received at least $25, 874, 066 from its role in the solar energy scheme.[37]

         25. From 2008 through 2016, IAS has received at least $5, 438, 089 from its role in the solar energy scheme.[38]

         26. From 2011 through 2016, XSun Energy has received at least $1, 126, 888 from its role in the solar energy scheme.[39]

         27. From 2010 through 2016, SOLCO I has received at least $3, 434, 992 from its role in the solar energy scheme.[40]

         28. From 2005 through February 28, 2018, all lens-selling entities have received at least $32, 796, 196.

         29. Testimony at trial showed that the total sales price of lenses which appears to have been paid is at least $50, 025, 480.[41]

         30. From 2008 through 2016, Shepard received $702, 001 from his role in the solar energy scheme.[42]

         31. While selling the solar lenses, Defendants told customers they could buy “lenses” and claim tax benefits.[43]

         32. While they sold solar lenses and organized efforts to sell solar lenses, Defendants told their customers that if they bought a solar lens and signed the transaction documents Defendants provide, their customers were in the “trade or business” of “leasing” solar lenses.[44]

         33. According to Defendants, because their customers are in the trade or business of leasing solar lenses, their customers are allowed to claim on their federal income tax returns a business tax deduction for depreciation on the solar lenses and a solar energy tax credit.[45]

         34. Defendants told customers that IAS, RaPower-3, or LTB “placed in service” or “put into service” their solar lenses in the year that the customers purchased the lenses.[46]

         35. Starting in 2010, RaPower-3 sold lenses for a price of $3, 500 per lens.[47] Johnson determined the price that RaPower-3 would charge for the lenses.

         36. Customers started purchasing lenses via the internet at On that site, a potential customer enters the number of lenses he wishes to purchase, and the website “figures” the amount the customer owes and the amount of the customer's down payment.[48]

         37. The site also provides all transaction documents for customers to sign electronically: an Equipment Purchase Agreement, an Operations & Maintenance Agreement (“O&M”), and, at times in the past, a bonus contract.[49]

         38. Customers do not negotiate the price of a lens, or other terms of the transactions Defendants promote.[50]

         39. Over the years, Defendants told customers about Johnson's purported solar energy technology and the progress being made by Defendants.[51] Defendants emphasized progress being made despite their knowledge that the system was not up and running.[52]

         40. From the start, Defendants have told their customers that they can “zero out” their federal income tax liability by buying enough solar lenses and claiming both a depreciation deduction and solar energy tax credit for the lenses.[53]

         41. Defendants knew that when they made statements to customers and prospective customers about the tax benefits and their purported solar lens leasing “trade or business, ” that the only way a customer has ever “made money” from buying a lens is from the tax benefits; no customer has earned money from rental income or income from a bonus contract.[54]

         42. LTB, which by contract was to operate and maintain the solar energy project and specifically the lenses, has never done anything; it has never had a bank account, any employees, or any revenue.[55]

         43. Defendants told customers to expect income from the “lease” of their lenses, but Defendants know that no customer has been paid for the use of his or her lenses.[56]

         44. Defendants' customers have been audited by the IRS for claiming the tax benefits Defendants promote.[57]

         45. Based on the advice and information provided by attorneys or accountants they spoke with about the solar energy scheme, Defendants knew or had reason to know that the purported tax benefits were not permissible under the Internal Revenue Code.[58]

         46. Defendants also knew or had reason to know that the purported tax benefits from their solar energy scheme were not permissible under the Internal Revenue Code because others also disagreed with their assertions about tax benefits available from the solar lenses, including: customers' or prospective customers' tax preparers/CPAs, the Internal Revenue Service, the Oregon Department of Revenue, the Oregon Tax Court Magistrate Division, and the Department of Justice.[59]

         47. When a customer notifies Shepard that they are under audit, Shepard typically directs the customer to Enrolled Agents John Howell or Richard Jameson to represent the customer before the IRS.[60] Howell and Jameson represent RaPower-3 customers using the same arguments that Defendants make.[61]

         48. Shepard has also advocated for customers under audit before the IRS.[62] He has given customers the arguments to make before the IRS and documents to submit while under audit.[63]

         49. Johnson is paying the attorneys' fees for all customers whose tax benefits have been disallowed on appeal by the IRS and who have filed petitions in Tax Court.[64]

         50. Defendants have caused serious harm to the United States Treasury as a result of their solar energy scheme.[65] Defendants' customers claimed at least $14, 207, 517 of improper tax refunds as a result of Defendants' scheme for tax years 2013 through 2016.[66]

         51. To date, Johnson, Shepard, IAS and RaPower-3 continue to organize sales of solar lenses, and participate (directly and indirectly) in the sale of solar lenses.[67]

         52. They are not deterred from promoting the scheme, not by the IRS' disallowance of their audited customers' depreciation deductions and solar energy tax credits or by the complaint filed in this case or by the announced result in the case.[68]

         II. The injunctive relief requested by the United States - in the form of an asset freeze and appointment of a receiver - is necessary or ...

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