United States v. Goodman , 527 F. App'x 697 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-1481
(D.C. No. 1:11-CV-00274-RBJ-MEH)
LAURENCE R. GOODMAN, (D. Colo.)
Defendant-Appellant,
and
COUNTY OF GILPIN, COLORADO;
COLORADO DEPARTMENT OF
REVENUE; PATRICK MAXWELL;
JAN INGEBRIGSTEN,
Defendants.
ORDER AND JUDGMENT*
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Defendant Laurence R. Goodman failed to file income tax returns for multiple
years, prompting the Internal Revenue Service (IRS) to assess substantial tax
liabilities. The United States filed this action to reduce the assessments to judgment
and to foreclose on real property owned by Mr. Goodman in Golden, Colorado.
Following disposition of cross-motions for summary judgment, the district court
entered judgment in favor of the United States in the amount of $1,375,062.69, plus
penalties and interest, and issued an order of foreclosure and decree of sale with
respect to the Golden property. Mr. Goodman now appeals. Finding his objections
to the district court’s disposition meritless, we affirm.
We review summary judgment de novo, applying the same standard used by
the district court. United States v. Botefuhr, 309 F.3d 1263, 1270 (10th Cir. 2002).
We will thus affirm the grant of summary judgment in favor of the IRS if it has
“show[n] that there is no genuine dispute as to any material fact and [it] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In the present context, the IRS
was entitled to judgment as a matter of law if (1) the assessment was supported by a
minimal evidentiary foundation—“some substantive evidence . . . demonstrating that
the taxpayer received unreported income”—thereby raising a presumption that it was
correct, and (2) Mr. Goodman failed to present substantial evidence to overcome the
presumption. United States v. McMullin, 948 F.2d 1188, 1192 (10th Cir. 1991)
(discussing basis for directed verdict in favor of IRS).
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Mr. Goodman stopped filing returns in 1997. Using its Information Reporting
Program Transcripts (“IRP Transcripts”), which reflect taxpayer data reported on
such forms as W-2s, 1098s, and 1099s, the IRS assessed substantial deficiencies
against Mr. Goodman for the tax years 1997-2000. This assessment is summarized in
a sworn declaration by a revenue officer whose duties include researching and
computing outstanding taxpayer balances. The IRP Transcripts attached to the
declaration total nearly sixty pages and reflect information from accounts attributed
to Mr. Goodman, as reported by third parties such as investment-management
company Burke Christiansen and Lewis Securities, Inc., Norwest Bank, and Bellco
Credit Union. Also attached to the declaration are notices of deficiency sent to
Mr. Goodman, who returned them with objections regarding the fictional nature of
the IRS and the fraudulent character of its actions. The United States filed all of this
material in support of its motion for summary judgment. The district court concluded
that this showing was sufficient to raise the presumption that the IRS assessment was
correct and, because Mr. Goodman failed to offer any evidence to rebut the
presumption, the United States was entitled to summary judgment.
Mr. Goodman’s overarching objection is that the IRS materials, in particular
the IRP Transcripts, were inadmissible and insufficient to support the presumption of
correctness invoked by the United States. The IRP Transcripts and the information
they contain, routinely compiled by the IRS from legally mandated reports submitted
by third parties in the normal course of business, were admissible under the
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business-record and public-record hearsay exceptions in Fed. R. Evid. 803(6) and (8).
See, e.g., United States v. Hayes, 861 F.2d 1225, 1228 (10th Cir. 1988); Hughes v.
United States, 953 F.2d 531, 539-40 (9th Cir. 1992). And the declaration that
accompanied this documentation provided adequate foundation and authentication.
See Hayes, 861 F.2d at 1228 (recognizing adequacy of similar representations by IRS
employee at trial). As for evidentiary sufficiency, the IRS materials reflecting
assessments made on the basis of specific third-party reports of income satisfied the
minimal evidentiary foundation required to trigger the presumption of correctness.
See, e.g., Hardy v. C.I.R., 181 F.3d 1002, 1005 (9th Cir. 1999) (holding presumption
triggered by Commissioner’s submission of worksheets calculating deficiency based
on report of income from taxpayer’s employer).
Mr. Goodman also advances a number of secondary objections clearly lacking
in merit. He contends that disposition of this case on summary judgment denied his
right to a jury trial. But “[t]he law is well-settled that summary judgment does not
violate the Seventh Amendment” right to a jury trial. J.R. Simplot v. Chevron
Pipeline Co., 563 F.3d 1102, 1117 (10th Cir. 2009). He objects to the United States
bringing an action to seize property without an underlying judicial judgment,
assertedly in violation of due process. As the United States points out, however, both
the judgment and ultimate decree of foreclosure were obtained—with all process
due—in this same action. It is common, and entirely proper, for the government to
proceed in this way, pursuant to 26 U.S.C. §§ 7401 - 7403, seeking both to reduce an
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assessment to judgment and foreclose on property to satisfy associated tax liens.
See, e.g., United States v. Henshaw, 388 F.3d 738, 740 (10th Cir. 2004); United
States v. Gibbons, 71 F.3d 1496, 1498 (10th Cir. 1995). Mr. Goodman complains in
passing that the government’s motion for summary judgment put pressure on him to
offer testimony in support of his case, burdening his Fifth Amendment right against
self-incrimination. But the Fifth Amendment is not “a sword whereby a [party]
asserting the privilege would be freed from adducing proof in support of a burden
which would otherwise have been his.” United States v. Rylander, 460 U.S. 752, 758
(1983). “In other words, a party who asserts the privilege against self-incrimination
must bear the consequences of lack of evidence.” United States v. $148,840.00 in
United States Currency, 521 F.3d 1268, 1274 (10th Cir. 2008) (internal quotation
marks omitted). Finally, Mr. Goodman’s briefing includes numerous obscure or
inapposite legal references, as well as impertinent remarks about the government and
the district court, which do not warrant further comment here.
The judgment of the district court is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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