NACI was consistently profitable. The company earned $4,477,513 in revenue in 2006, although advance expenses accrued early for tax reasons resulted in a slight, artificial loss of $339,274.8 By 2007, NACI's revenue had increased to $5,340,493, and its net income improved to a positive $399,951.9In 2008, NACI only operated from January through May but appeared poised for its most profitable year. The firm earned $1,858,782.55 in total income and $382,095.39 in net income for the five-month operating period in 2008.10 Based on these figures, NACI hardly appears to have been on its last legs. The firm's profitability was increasing year-to-year.

Goble was the person in charge of NACI, although he had no official title other than as a member of NACI's board of directors.11 He made all important hiring decisions. Bruce Blatman, NACI's last president, reported directly to Goble.12

Goble worked tirelessly to help NACI succeed focusing on marketing, technology, and generating business for the firm. He routinely attended conferences around the country to promote NACI's services. Goble was the salesman for the company and relied on others to insure that NACI complied with securities regulations and properly accounted for customer funds.13  According to Blatman, Goble "ran" NACI.14

Here, the Two Year Transfers fall into two categories-business expenses ($255,282.06) and personal expenses ($245,777.72). The business expenses include charges for these types of expenditures:

• Travel expenses for Goble and other employees to attend business meetings and trade

conferences;

• Real estate taxes and property related expenses on NACI's offices;

• Advertising expenses;

• Business cell phone costs;

• Stockbroker test preparation materials;

• Employee search firm services;

• Computer equipment;

• Business lunches for NACI employees and others;

• Office supplies;

• Company gatherings and other outings for employees;

• FINRA charges;

• Corporate filing expenses;

• Software licensing expenses; and

• Conference call services.38

After trial, the Court reviewed these expenses at some length and honestly is shocked that the Trustee would challenge these expenses. Trustee put forth absolutely NO proof to show that NACI failed to receive reasonably equivalent value from these charges. Many of the credit card  charges are clearly business related, such as amounts paid to FINRA, employee search firm services, corporate filing expenses, and conference call services. To argue that NACI received no value from these obviously business-related Transfers defies logic. . .

Here, the Trustee tried to establish this element by showing that the Debtor "was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital."53 This prong is known as "unreasonably small capital" or "under capitalization,"54 is rarely argued, and is difficult to establish. Indeed, the vast majority of the six days of trial time was devoted to this portion of the Trustee's complicated factual argument. . .

The Trustee here provided no meaningful analysis of the Debtor's financial condition in conjunction with the Transfers. The Trustee's case hinged instead on questionable legal presuppositions and untested hypotheses involving NACI's use of customer funds in its operations. In simple terms, the Trustee argues that NACI improperly used customer cash to fund daily operating expenses and, therefore, must have been operating with unreasonably small capital when the Transfers occurred. . .

The Court rejects the Trustee's argument of actual fraud. Although Goble, as sole indirect owner of NACI and member of its board of directors is an insider of NACI, the company was paying its bills on time, was not undercapitalized, received reasonably equivalent value for the Transfers, and did not improperly use, conceal, or remove assets, including customer monies. The Court specifically finds that the Transfers largely pre-dated FINRA's complaint against NACI lodged in Fall 2007. The Transfers were an established pattern of payment by NACI to Goble and were not in response or even remotely connected to the FINRA complaint. No other badges of fraud exist. 93  The Trustee did not prove actual fraud. . .