United States v. Russell Gentile , 322 F. App'x 699 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14431 APRIL 1, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 08-00142-CV-ORL-28-GJK
UNITED STATES OF AMERICA,
Petitioner-Appellee,
versus
RUSSELL GENTILE,
Respondent-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 1, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Russell Gentile appeals the district court’s order denying his motion to
vacate, brought pursuant to Fed.R.Civ.P. 60(b)(4). Gentile’s motion sought
vacatur of the district court’s underlying order granting the government’s petition
for approval of a levy on Gentile’s primary residence, pursuant to Internal Revenue
Code (“I.R.C.”) § 6334(e)(1). For the reasons set forth below, we affirm.
I.
The government filed a petition for judicial approval of a levy upon
Gentile’s primary residence, pursuant to § 6334(e)(1), for the purposes of
collecting $144,551.76 in unpaid federal taxes from 2000 and 2001. Section 6334
governs what assets are exempt from levies for tax collection purposes. Pursuant
to § 6334(e)(1), “a principal residence shall not be exempt from levy if a judge or
magistrate of a district court of the United States approves (in writing) the levy of
such residence.” The government attached the declaration of Internal Revenue
Service (“IRS”) officer Daniel Haber. Haber declared that (1) he had reviewed
applicable IRS records and determined that Gentile owed $144,551.76; (2) the IRS
gave Gentile notice, and demanded payment, of the liability, but Gentile failed to
pay; (3) the IRS had attempted to satisfy the liability from assets besides Gentile’s
private residence, but had found that no reasonable alternative existed; and (4) the
IRS generally had followed the requirements of applicable law and relevant
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administrative procedures. Gentile filed a motion to dismiss the government’s
petition for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), on the
ground that the government had not established the essential elements of unpaid
federal income tax liabilities because the taxes demanded were an unconstitutional
direct tax on his earnings. The district court held a hearing and received exhibits.
Gentile objected to the exhibits on the ground that they did not demonstrate that
the taxes demanded were constitutional. On February 15, 2008, the district court
entered an order granting the government’s petition for approval.
Three months later, on May 16, 2008, Gentile filed the instant motion to
vacate, pursuant to Rule 60(b)(4), on the ground that the order was void because
the district court had acted inconsistently with due process of law. Gentile asserted
that the demanded taxes were unconstitutional. The government responded that
this Court had long ago dismissed arguments such as Gentile’s that were based on
the unconstitutionality of the federal income tax. On June 16, 2008, the district
court denied Gentile’s Rule 60(b) motion to vacate. On July 31, 2008, Gentile
filed a notice of appeal (“NOA”) from this denial.
II.
As an initial matter, the scope of our review is limited to the district court’s
denial of Gentile’s Rule 60(b) motion to vacate. Gentile filed his NOA more than
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60 days after the district court’s entry of the February 15, 2008 order granting the
government’s petition for approval. See Fed.R.Civ.P. 4(a)(1)(B) (“When the
United States or its officer or agency is a party, [an NOA] may be filed by any
party within 60 days after the judgment or order appealed from is entered.”)
Gentile’s Rule 60(b) motion to vacate, moreover, did not toll the time for filing the
NOA because the Rule 60(b) motion was filed more than 10 days after the district
court granted the government’s petition for approval on February 15, 2008. See
Fed.R.Civ.P. 4(a)(4)(A)(vi) (instructing that a Rule 60 motion that is filed no later
than ten days after the judgment is entered tolls the running of the 60-day time for
filing an NOA). Therefore, the instant appeal is untimely as to the underlying
order granting the petition for approval. See Fed.R.Civ.P. 4(a)(1)(B). Moreover,
review of the denial of Gentile’s Rule 60(b) motion to vacate does not give us
authority to review the grant of the government’s petition for approval. See Am.
Bankers Ins. Co. of Florida v. Northwestern Nat’l Ins. Co., 198 F.3d 1332, 1338
(11th Cir. 1999) (holding that appeal from a denial of a Rule 60(b) motion to
vacate is “narrow in scope” and must address only the propriety of denying the
Rule 60(b) motion to vacate and not the underlying judgment).
III.
We review de novo a district court’s denial of a Rule 60(b)(4) motion to
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vacate on the ground of voidness. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.
2001). Pursuant to Rule 60(b), the district court “may relieve a party or its legal
representative from a final judgment, order, or proceeding” if, inter alia, “the
judgment is void.” Fed.R.Civ.P. 60(b)(4). “Generally, a judgment is void under
Rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject matter,
or of the parties, or if it acted in a manner inconsistent with due process of law.”
Burke, 252 F.3d at 1263 (internal quotation marks omitted). We have held that
“Rule 60(b) may not be used to challenge mistakes of law which could have been
raised on direct appeal.” Am. Bankers Ins. Co. of Florida, 198 F.3d at 1338. As to
subject matter jurisdiction, “a plaintiff who invokes the jurisdiction of a federal
court bears the burden of showing (1) an injury in fact, meaning an injury that is
concrete and particularized, and actual or imminent, (2) a causal connection
between the injury and the causal conduct, and (3) a likelihood that the injury will
be redressed by a favorable decision.” KH Outdoor, L.L.C. v. Clay County, Fla.,
482 F.3d 1299, 1303 (11th Cir. 2007). As to due process, the Due Process Clause
generally requires notice and an opportunity to be heard. Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 657, 94 L.Ed. 865(1950).
IV.
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The district court did not err in denying Gentile’s Rule 60(b) motion to
vacate on the ground of voidness. See Burke, 252 F.3d at 1263. Gentile argues
that the grant of the government’s petition for approval was void because (1) the
district court denied him due process by failing to consider his arguments on the
constitutionality of the demanded taxes, (2) the district court lacked subject matter
jurisdiction because the government had failed to establish an actual injury, and
(3) the demanded taxes were unconstitutional. First, the district court did not
violate Gentile’s due process rights. Haber in his declaration stated that the IRS
gave Gentile notice of the intended levy, and the record demonstrates that the
district court held a hearing on the matter. Gentile has not challenged this
evidence. Thus, Gentile received notice and an opportunity to be heard. See
Mullane, 339 U.S. at 313-14, 70 S.Ct. at 657. Gentile repeatedly argued, in his
Rule 12(b)(6) motion to dismiss and in objecting to the government’s exhibits, that
the taxes demanded were unconstitutional direct taxes on his earnings. Although
he argues as much, Gentle has not demonstrated that the district court did not take
into account these arguments.
Also, the available record demonstrates that the district court had subject
matter jurisdiction. Haber stated that he had reviewed applicable IRS records and
determined that Gentile owed $144,551.76. Thus, the government showed that it
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suffered an actual injury, and the district court had subject matter jurisdiction. See
KH Outdoor, L.L.C., 482 F.3d at 1303. Although he argues that the government’s
showing was insufficient because it did not cite specific tax code provisions or
explain how the assessments constituted indirect taxes in assessing his tax
liabilities, Gentile has not presented evidence that the government’s notice of tax
liabilities did not include this information or how the absence of such information
establishes that the government did not suffer an injury in fact.
Finally, Gentile’s arguments regarding the constitutionality of the demanded
taxes were not properly brought in his Rule 60(b) motion to vacate, as they should
have been made on direct appeal. See Am. Bankers Ins. Co. of Florida, 198 F.3d at
1338. Thus, we need not consider these arguments. Accordingly, because Gentile
has not demonstrated that he did not receive due process or the district court did
not have subject matter jurisdiction, we affirm.
AFFIRMED.
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