Ana Garcia de Beck v. Douglas Shulman, et a ( 2015 )

Case: 14-50895 Document: 00513153752 Page: 1 Date Filed: 08/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2015
No. 14-50895
Lyle W. Cayce
Clerk
ANA GARCIA DE BECK, Individually, Owner and Officer; AGB
ENTERPRISES, INCORPORATED, for Profit Corporation, Chartered in the
State of Texas; SAN ANTONIO DENTAL MANAGEMENT GROUP; SAN
ANTONIO DENTAL LABORATORY,
Plaintiffs – Appellants
v.
UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE,
Defendant-Third Party Plaintiff – Appellee
v.
INTERVEST INTERNATIONAL FOUNDATION OF STOCKHOLM,
SWEDEN,
Defendant-Third Party Defendant – Appellant
ROBERT LEE BECK; JB VEGA CORPORATION,
Third Party Defendants – Appellants
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:11-CV-45
Case: 14-50895 Document: 00513153752 Page: 2 Date Filed: 08/13/2015
No. 14-50895
Before DAVIS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Ana Garcia De Beck (“Ana”), AGB Enterprises,
Incorporated (“AGB”), San Antonio Dental Management Group (“Dental
Management”), and San Antonio Dental Laboratory (“Dental Lab”)
(collectively, “Plaintiffs”) and Third Party Defendants Robert Lee Beck
(“Beck”) and JB Vega Corporation (“Vega”) appeal various aspects of the
district court’s judgment (1) finding Beck liable for unpaid income and
employment taxes and AGB liable for unpaid employment taxes and
(2) ordering the sale of AGB, Beck’s dental practice, and 498 Borgfeld Road in
San Antonio (the “Borgfeld Property”). Third Party Defendant Intervest
International Foundation of Stockholm, Sweden (“Intervest”) appeals the
default judgment entered against it.
Beck is a dentist in San Antonio, Texas. From 1991 to 1995 and 1998 to
2012, Beck failed to pay income taxes. As of March 2014, Beck owed more than
$3.8 million in income taxes, penalties, and interest, and more than $105,000
in employment taxes, penalties, and interest for his dental practice. AGB owed
over $200,000 in employment taxes, penalties, and interest.
After a bench trial, the district court ruled that Beck controlled the
Borgfeld Property and that Vega held the property as his nominee, alter ego,
and transferee. The district court also ruled that Beck is the true owner of the
dental practice. In rulings unchallenged on appeal, the district court ordered
that Beck pay $3,888,757.93 for income taxes and $105,614.57 for employment
taxes; it also ordered that AGB pay $213,569.22 for employment taxes. The
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-50895
district court further ordered that all of Beck’s property, including AGB, the
dental practice, and the Borgfeld Property, were encumbered by federal tax
liens to secure the monetary judgments. Finally, the district court issued a
take-nothing judgment against Ana, AGB, Dental Lab, and Dental
Management in their wrongful levy action, finding that the levy was not
wrongful.
The district court had jurisdiction over Ana’s complaint under 26 U.S.C.
§ 7426(a)(1). The district court also had jurisdiction over the Government’s
collection suit under 26 U.S.C. §§ 7402(a) and 7403, and 28 U.S.C. §§ 1340 and
1345. The district court entered a final judgment on August 21, 2014. Ana,
AGB, Dental Lab, Dental Management, and Beck timely appealed, as did Vega
and Intervest. Reviewing factual findings for clear error and legal conclusions
de novo and concluding that the district court did not commit reversible error
and that some parties lack standing, we DISMISS in part and AFFIRM in part
as follows:
1. Although Beck, Ana, AGB, Dental Lab, Dental
Management, and Vega appeal the district court’s determination that
Beck is the true owner of the Borgfeld Property, we conclude that only
Vega, which alleges it is the “true owner,” has standing to assert this
challenge. The other parties do not claim to be owners or to be harmed
by this outcome. Thus, they lack standing, and we DISMISS their
appeal on this issue. See Rohm & Hass Tex., Inc. v. Ortiz Bros.
Insulation, Inc., 32 F.3d 205, 208 (5th Cir. 1994) (“[A] party generally
may not appeal a district court’s order to champion the rights of
another . . . .”); cf. United States v. Doyal, 462 F.2d 1357, 1358–59 (5th
Cir. 1972) (appellant could not institute action under 26 U.S.C. § 7426
on behalf of third party where taxpayer specifically disclaimed any
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interest in property owned by third party). With respect to Vega, we
conclude that the district court did not commit reversible error in its
factual findings and legal conclusion that Vega held title to the
Borgfeld Property as the nominee of Beck. See Oxford Capital Corp.
v. United States, 211 F.3d 280, 284 (5th Cir. 2000). 1
2. We also reject Plaintiffs’ due process claim regarding an
alleged failure to comply with 26 U.S.C. § 6331(d)(1) in connection
with a notice of levy sent to AGB, Dental Management, Dental Lab,
and Ana on April 14, 2010. Plaintiffs “agreed to not pursue” their
wrongful levy claims at trial. Thus, Plaintiffs cannot now challenge
the notice of levy to these four parties on appeal. 2 See Nasti v. CIBA
Specialty Chems. Corp., 492 F.3d 589, 595 (5th Cir. 2007) (“If an
argument is not raised to such a degree that the district court has an
opportunity to rule on it, we will not address it on appeal.” (citation
and internal quotation marks omitted)); cf. U.S. Shipping Bd.
Emergency Fleet Corp. v. S. Atl. Dry Dock Co., 19 F.2d 486, 489 (5th
Cir. 1927) (“A fact or conclusion admitted by a party in the trial court
for the purposes of the trial is not open to be controverted or put in
issue by that party in the appellate court.”).
1 We also conclude that the district court’s refusal to admit the administrative record
as a discovery sanction was not reversible error. Nor was it error to apply an adverse
inference to Beck’s claiming of Fifth Amendment privilege at the trial of this civil case.
2 Though the court later entered a judgment against AGB for unpaid employment
taxes, the notice of levy named Beck as the taxpayer and AGB as a nominee, alter ego, and/or
transferee of Beck. Plaintiffs’ complaint asserted several violations of § 7426(a)(1), which
provides the exclusive means for a person other than the taxpayer to challenge the validity
of an IRS levy. See EC Term of Years Trust v. United States, 434 F.3d 807, 810 (5th Cir.
2006). To the extent AGB sought to challenge the levy as a taxpayer and not as a third party,
it cannot do so through a wrongful levy claim. See § 7426(a)(1) (wrongful levy claim is
available to “any person (other than the person against whom is assessed the tax out of which
such levy arose)”).
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3. At oral argument, Beck and AGB’s counsel indicated that
those parties “intended” to appeal the district court’s rulings
regarding the dental practice, not just the Borgfeld Property. Because
neither AGB nor Beck included the issue in the statement of issues or
explained that they intended to appeal this point, they waived the
issue. See X Techs., Inc. v. Marvin Test Sys., Inc, 719 F.3d 406, 411
n.3 (5th Cir. 2013) (party waived issue by, inter alia, failing to include
it in statement of issues). In any event, the claim fails on its merits.
4. Intervest argues that the default judgment against it was
improper because the Government improperly served Peter Eng as
the president of Intervest when Peter Eng was not an officer. To the
contrary, the record shows that Eng was designated as an officer of
Intervest in the company’s charter. Both federal and Texas law
permit service on an officer of a corporation. See FED. R. CIV. P.
4(h)(1); TEX. BUS. ORGS. CODE § 5.255. Additionally, an attorney
entered an appearance on behalf of Intervest in the trial court and did
not challenge the default judgment entered at the end of the bench
trial, waiving any defense based on imperfect service. Broadcast
Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 281 (5th Cir. 1987).
We AFFIRM the district court’s judgment.
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