United States v. Dawes, 10th Cir. (2005)
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
December 5, 2005
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD W. DAWES, as Trustee of
the Plainsman Property Trust
also known as Plainsman Property
Company; PHYLLIS C. DAWES,
as trustee of the Plainsman Property
Trust also known as Plainsman
Property Company,
No. 04-3454
(D.C. No. 03-CV-1132-JTM)
(D. Kan.)
Defendants-Appellants,
and
DAVID LARRY SMITH, as Trustee of
the Plainsman Property Trust also
known as Plainsman Property
Company; DEREK DANE
DAWES, as trustee of the Plainsman
Property Trust also known as
Plainsman Property Company,
Defendants.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
(continued...)
Before EBEL , HARTZ , and McCONNELL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff-appellee United States of America brought an action against
defendants-appellants Donald W. and Phyllis C. Dawes to reduce to judgment
federal tax assessments for 1982-1984, 1986-1988, and 1990; to set aside
conveyances of property as fraudulent; to obtain a decision that the Plainsman
Property Trust (Trust) held property as the nominee of the Daweses; and to
foreclose federal tax liens on nine pieces of property held by the Trust. The
district court denied the Daweses motions to dismiss, granted the United States
unopposed motion for summary judgment, entered judgment against the Daweses,
and ordered foreclosure of the federal tax liens.
On appeal, the Daweses assert several legal arguments. Reviewing their
legal arguments de novo,
see Jefferson County Sch. Dist. No. R-1 v. Moodys
Investors Servs., Inc. , 175 F.3d 848, 856 (10th Cir. 1999), and liberally
(...continued)
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
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construing their pro se pleadings,
see Haines v. Kerner , 404 U.S. 519, 520 (1972),
we affirm, because their arguments are frivolous and meritless.
I
The Daweses make several arguments contending that the district court
lacked subject matter jurisdiction. For the reasons discussed below, we conclude
that these arguments lack merit.
Contrary to the Daweses frivolous assertions, (1) the United States
asserted jurisdiction over this action by properly alleging jurisdiction in its
complaint under 26 U.S.C. 7402(a) and 7403 and 28 U.S.C. 1340 and 1345;
(2) the district court did find that it had jurisdiction over this action in its orders
denying the Daweses motions to dismiss; and (3) an Article III judge did decide
this case, and the district court did have Article III judicial power.
We reject the Daweses next argument that 28 U.S.C. 2201 limits the
district court to tax matters arising solely under 26 U.S.C. 7428. Section 2201
authorizes a district court to issue declaratory relief, but it does not apply to
federal taxes, except with respect to 7428. Section 7428, in turn, is irrelevant to
this action, because it concerns declaratory judgment actions relating to the status
and classification of tax-exempt organizations.
We also reject the Daweses contention that 44 U.S.C. 1505(a) mandated
the publication of 26 U.S.C. 6321 and 6322, which they characterize as penalty
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statutes, in the Federal Register and that both statutes must have supporting
regulations before the district court could assume jurisdiction over this case.
Section 1505(a) requires publication in the Federal Register of Presidential
proclamations and Executive orders which prescribe a penalty, documents the
President determines have general application and legal effect, and documents
required to be published by Congress. Sections 6321 and 6322 do not fit into any
of these three categories. Thus, publication of 6321 and 6322 in the Federal
Register was not required by 1505(a). Nor were supporting regulations
required. See Watts v. IRS , 925 F. Supp. 271, 277 & n.3 (D. N.J. 1996).
The Daweses argument that the Secretary of the Treasury must establish
internal revenue districts in each individual state in order for the district court to
have subject matter jurisdiction is not supported by any authority. As such, this
court will not consider this argument on appeal.
See Phillips v. Calhoun ,
956 F.2d 949, 953-54 (10th Cir. 1992) (requiring party to support arguments with
authority).
According to the Daweses, [f]ailure to publish in the Federal Register is
evidence that the statutes in question are intended for those person[s] subject to
the jurisdiction of the United States, a class of persons to which [they] do not
belong, and upon whom those penalties may not be imposed. Aplt. Br. at 22. To
the extent the Daweses are arguing that they are not subject to the jurisdiction of
the United States and, as such, are not liable for paying taxes, that argument is
legally frivolous. See Lonsdale v. United States , 919 F.2d 1440, 1448 (10th Cir.
1990) (rejecting similar legally meritless and patently frivolous arguments).
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Finally, we reject the Daweses argument that the district court lacked
subject matter jurisdiction because that courts orders and judgments included
only the signature of the judge and did not have the attestation by the clerk and
stamp of the seal of the court, which they allege is required by 28 U.S.C. 1691.
Section 1691, however, applies only to writs and process that issue from the
district court, not orders and judgments.
II
The Daweses argue that the United States lacked standing and the district
court lacked subject matter jurisdiction because (1) United States of America
and United States are not synonymous, and the United States of America is not
the proper plaintiff under 28 U.S.C. 1345; (2) the United States lacked a valid
lien at the time the suit was filed under 26 U.S.C. 7403 and 28 U.S.C. 1345;
(3) the United States was required to bring its civil action under the Federal Debt
Collection Procedures Act (Act), 28 U.S.C. 3001(a); and (4) the Internal
Revenue Service (IRS) is not an agency of the United States and the Chief
Counsel of the IRS is not a delegate of the Secretary of the Treasury expressly
authorized to sue under 26 U.S.C. 7401.
Their first and fourth arguments are legally frivolous and do not merit
further comment.
See generally Lonsdale , 919 F.2d at 1448 (rejecting fourth and
other similar-type arguments).
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With respect to their second argument, the record shows that the United
States did have valid liens at the time they filed suit, because federal tax liens
arose at the time the Daweses failed to pay the taxes assessed against them.
26 U.S.C. 6321, 6322;
See
Gardner v. United States , 34 F.3d 985, 987 (10th Cir.
1994). Tax liens are valid until the taxes are paid in full or become uncollectible
upon expiration of the statute of limitations. 26 U.S.C. 6322. As discussed in
section III below, the statute of limitations had not expired at the time this suit
was commenced.
We also reject the Daweses argument that the United States must bring a
federal debt collection lawsuit pursuant to 28 U.S.C. 3001(a). Section 3001(a)
provides that where another statute specifies procedures for collecting a debt,
those procedures apply unless they are inconsistent with the Act. The Act also
expressly provides that it does not limit the United States right to collect taxes
under federal law. 28 U.S.C. 3003(b)(1).
III
The Daweses argue that the statute of limitations barred this action for all
tax years. Specifically, they argue that the ten-year limitations period of
26 U.S.C. 6502(a)(1) barred initiation of an action after 1993 for tax years 1982
and 1983, because this case was filed in 2003. They further argue that taxes for
the years 1984 and 1986-1988 were not properly assessed within the three-year
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period of limitations of 26 U.S.C. 6501(a), because the assessments were made
in 1992, more then four years after they filed their tax returns. Lastly, they argue
the ten-year limitations period barred this action for 1990. We conclude the
statute of limitations had not expired for any of the tax years at issue.
The IRS assessed taxes for 1982 and 1983 after the amount of taxes for
those years was finally determined in December 1993 by a Tax Court decision.
The United States filed this collection action on April 22, 2003, within the
ten-year limitations period for collection of taxes as set forth in 26 U.S.C.
6502(a)(1).
The Daweses filed their tax returns for 1984, 1986-1988, and 1990 on
November 22, 1991. The IRS timely assessed taxes for those years on February
17, 1992. See 26 U.S.C. 6501(a) (requiring assessment within three years after
tax return was filed). On April 14, 2000, the Daweses requested a Collection Due
Process (CDP) hearing.
The statute of limitations for collection is suspended during the time that a
CDP proceeding and any appeal therefrom is pending. 26 U.S.C. 6330(e)(1). In
The Daweses deny receiving notice of levy or requesting and receiving a
CDP hearing. Contrary to their argument, the record shows that the IRS notified
them that it had filed notices of tax lien and of their right to request a CDP
hearing under 26 U.S.C. 6320. Also, the record shows that they requested and
received a CDP hearing.
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addition to this tolling period, the statute of limitations cannot expire before the
ninetieth day after the day of a final determination on the hearing.
Id.
The IRS made its CDP determination on July 13, 2001. The determination
became final thirty days later, because the Daweses did not appeal the decision.
This thirty days, along with the 455 days from April 14, 2000 to July 13, 2001,
tolled the ten-year collection period 485 days beyond February 17, 2002, until
June 17, 2003. We need not even add in the additional ninety days, because the
United States filed this action on April 22, 2003, which was well within the
ten-year statue of limitations for a collection action for the years 1984,
1986-1988, and 1990.
IV
The Daweses argue that the attorney representing the United States and
unnamed others committed felony fraud and extortion, prohibited by 26 U.S.C.
7214(a), by asking for sums greater than that set forth on assessment Form 23C,
which does not exist. In the district court, the United States produced a
Certificate of Assessments and Payments. This document creates a presumption,
which was never rebutted by the Daweses, that a Summary Record of Assessment
was executed and certified and provided to the Daweses.
See March v. IRS ,
335 F.3d 1186, 1189 (10th Cir. 2003). The United States, therefore, was not
required to produce a Form 23C.
See id. ; see also Long v. United States , 972 F.2d
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1174, 1181 (10th Cir. 1992) (holding that taxpayer has no right to receive
particular form as long as form on which notice of assessment and demand for
payment is made provides taxpayer with information required under 26 U.S.C.
6303(a)). Thus, the allegations of felony fraud and extortion are frivolous.
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V
The Daweses argue that the district court erred in granting summary
judgment in favor of the United States, because (1) the district court lacked
jurisdiction and (2) the motion for summary judgment was supported solely by
counsels arguments and not by affidavits. We have previously rejected the first
argument. The second is defeated by the record, which shows that the United
States did provide two affidavits and 109 exhibits in support of its motion.
VI
Mr. and Mrs. Dawes argue that neither the judgment nor the amended
judgment comply with the separate document requirements of Fed. R. Civ. P. 58.
The original judgment did contain errors; thus, it was later amended. The
amended judgment, however, did satisfy the requirements of Rule 58, and resulted
in a final judgment.
In conclusion, we reject all arguments made by the Daweses, including any
not specifically addressed. Accordingly, the judgment of the district court is
AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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