Gardner v. United States ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 In re Gardner No. 02-5523
ELECTRONIC CITATION: 2004 FED App. 0077P (6th Cir.)
File Name: 04a0077p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: David M. Cantor, SEILLER & HANDMAKER,
FOR THE SIXTH CIRCUIT Louisville, Kentucky, for Appellant. Marion E.M. Erickson,
_________________ UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: David M.
In re: GARY LOUIS GARDNER , X Cantor, C. Shawn Fox, SEILLER & HANDMAKER,
Debtor. - Louisville, Kentucky, for Appellant. Marion E.M. Erickson,
- Edward T. Perelmuter, UNITED STATES DEPARTMENT
_____________________ OF JUSTICE, Washington, D.C., for Appellee.
- No. 02-5523
-
JEFFREY D. STAMPER , > _________________
,
Executor of the Estate of Gary -
OPINION
Louis Gardner, - _________________
Appellant, -
- KRUPANSKY, Circuit Judge. This proceeding seeks to
v. - decide if appellant-debtor Gary Gardner (“Gardner”) may
- discharge his income tax liability for the years 1990 and 1991
- pursuant to 11 U.S.C. § 523(a)(1)(C) of the Bankruptcy Code
UNITED STATES OF AMERICA , - (“Code”). The appellant has challenged the district court’s
Appellee. - affirmance of the bankruptcy court’s determination that his
- conduct constituted a willful attempt to evade his tax liability,
N thus precluding discharge in a Chapter 7 liquidation. On
Appeal from the United States District Court appeal, Gardner, and now his estate,1 has urged this court to
for the Western District of Kentucky at Louisville. conclude that Section 523(a)(1)(C) of the Code does not apply
No. 01-00514—John G. Heyburn II, Chief District Judge; to attempts to willfully evade or defeat the payment of taxes,
David T. Stosberg, Bankruptcy Judge. thereby allowing his estate to discharge his tax liability in
bankruptcy. For the reasons indicated below, this court
Argued: September 16, 2003 affirms the district court’s conclusion that the bankruptcy
Decided and Filed: March 12, 2004
1
Before: BOGGS, Chief Judge; KRUPANSKY and CLAY, After the filing of briefs before this court, G ardner died. Pursuant
Circuit Judges. to Rule 45(a), Rules of the Sixth Circuit, the office of the Circu it Clerk
granted a motion for substitution of Jeffrey D. Stamper, Executor of the
Estate of Gary Louis Gardner for debtor by Order of May 29, 2003. That
substitution did not alter the terms of the dispute.
1
No. 02-5523 In re Gardner 3 4 In re Gardner No. 02-5523
court did not err in refusing to discharge Gardner’s tax a required Collection Information Statement (“CIS”) and an
liability. analysis of his pending cases. Gardner’s CIS listed only two
bank accounts: First National Bank with a balance of $26.24;
The United States instituted an adversary proceeding and Pennyrile Bank with a balance of $7.75.
against Gardner in the bankruptcy court by filing a complaint
seeking a determination that his unpaid tax liabilities for 1990 Gardner and Thomas met twice in July, and on
and 1991 were excepted from discharge in bankruptcy under September 28, 1992, appellant submitted an offer to
§ 523(a)(1)(C) of the Code. The bankruptcy court determined compromise his tax liabilities for $21,539. Thomas
the liabilities were excepted from discharge under that recommended the compromise offer to the IRS personnel
provision because appellant had willfully attempted to evade responsible for processing offers in compromise, indicating
or defeat those liabilities. On appeal, the district court that he believed the amount offered represented the maximum
affirmed the bankruptcy court’s determination. amount likely to be collected through normal collection
procedures. The IRS rejected the offer in May 1993.
During the relevant period, appellant worked as a personal
injury attorney. He was a partner in the law firm of Gardner, Along with the offer in compromise, appellant submitted
Ewing & Souza. On August 19, 1991, Gardner filed his 1990 an updated CIS listing the same two bank accounts detailed
federal income tax return showing an unpaid tax liability of on his prior statement, except now one bank account reflected
$90,989. After appellant failed to satisfy that liability, a zero balance and the other disclosed that it was overdrawn.
Revenue Officer Keith Thomas contacted debtor to make Significantly, Gardner did not list a nominee account, in the
demand for payment. Thomas informed Gardner that if he name of his secretary and her husband. Gardner used this
did not pay the liability, the Internal Revenue Service (“IRS”) account for his personal banking needs, depositing $90,000
would commence collection efforts and on April 27, 1992, between August 31 and September 10, 1992.2
Thomas caused a federal tax lien to be filed against debtor.
In May 1993, Gardner received a $500,000 distribution
On June 2, 1992, Gardner, his accountant, and Thomas met from his law firm attributable to the settlement of a case (the
to discuss debtor’s tax delinquencies. The discussion Victor Robinson case). The appellant did not inform Thomas
addressed the debtor’s unpaid tax liabilities for 1990 and about the settlement nor apply any portion of the funds to his
1991. At the meeting, Gardner informed Thomas that his 1990 or 1991 tax liabilities. Gardner did, however, use
1991 tax return would be filed showing a tax liability of $209,000 of the distribution to make an estimated federal tax
approximately $101,000. Gardner assured Thomas he was payment for 1993, and used another part (as much as
working on several cases that could settle within the $60,000) to pay State tax obligations.
following months for which his personal fees would be
sufficient to satisfy the tax obligations. On October 7, 1993, Gardner again submitted to the IRS an
offer to compromise his tax liabilities, this time for $100,000.
Thomas requested that Gardner provide him with certain
financial information, noting that failure to provide the
requested information would result in levies on appellant’s
2
bank accounts and seizure of his partnership interest. Gardner Gardner began using this account in March 199 2 and stopped using
provided the requested financial information, which included the account sometime in 1993 when he began using a client escrow
acco unt at his law firm for his p erson al banking needs.
No. 02-5523 In re Gardner 5 6 In re Gardner No. 02-5523
Appellant accompanied the offer with an updated CIS form, response, Gardner deposited $36,000 in another nominee
which failed to list an escrow account at Gardner’s law firm account maintained in his wife’s former married name and
that debtor used for his personal banking needs. Between made a $25,073 contribution to his retirement plan.
December 1993 and May 1995, Gardner deposited more than
$115,000 into that account. In early 1995 the IRS rejected On October 30, 1995, soon after the IRS served the levy on
Gardner’s second compromise offer. his law firm, Gardner filed a petition for relief under
Chapter 7 of the Bankruptcy Code. Gardner did not list any
Shortly after the IRS rejected Gardner’s second cash on hand or bank accounts and he did not list the Cordis
compromise offer, Thomas mailed appellant a final notice of case on a list of pending cases at his law firm that he
intent to levy against real and personal property unless the submitted to the trustee. Gardner’s bankruptcy case closed on
appellant paid the full amount of his past-due tax liabilities September 23, 1998.
within 30 days. The levy notice listed Gardner’s total
liability, including penalties and interest, as $343,467.33. On March 12, 1999, the United States sought to reopen the
appellant’s bankruptcy proceeding, which the court granted.
On April 14, 1995, Gardner and his accountant met with On May 5, 1999 the government instituted an adversary
Thomas to discuss satisfying his tax obligations. Gardner proceeding against Gardner by filing a Complaint to
assured Thomas that his law firm expected to receive a fee in Determine Dischargeability of his federal income tax
the near future from the settlement of a case (the Cordis case), liabilities.
and that appellant’s share of that fee would satisfy his tax
liabilities. Gardner advised Thomas to issue a levy on the law The bankruptcy court conducted a trial on the complaint
firm to collect debtor’s share of the fee at the appropriate that featured testimony by appellant, his accountant, and IRS
time. On October 10, 1995, Gardner’s accountant advised officials involved in the case. At the trial, Gardner admitted
Thomas to serve the levy which instructed the firm to pay that he used nominee accounts to hide his assets from the
over all property of the appellant, being held by the firm, up State of Kentucky. Debtor also testified that he was aware of
to the total amount of tax due. The managing partner of the his obligation to pay his 1990 and 1991 federal income taxes,
firm responded to the levy by mailing Thomas a check for and that he could have used some of the income he earned
$2,707.13, along with a letter stating that the check between 1990 and 1996 to pay those taxes.
represented the sum total of “personal funds” due Gardner
from the law firm’s accounts.3 Keith Thomas testified that he did not become aware of
debtor’s nominee accounts until December 1999, when
Subsequent to the IRS levy, Gardner’s firm received its fee Gardner provided a deposition in connection with the instant
from the Cordis case on December 6, 1995, forwarding none litigation. Thomas also testified that he would not have
of the appellant’s share of the $170,000 fee to the IRS, and considered debtor’s original offer in compromise to be bona
instead distributing the fee to appellant in January 1996. In fide had he known, at the time, that debtor had deposited
$90,000 in the nominee account belonging to Gardner’s
secretary and her husband shortly before submitting his first
3
In a telephone conversation, the managing partner advised Thomas compromise offer. Additionally, John Brandon, the IRS
that he wo uld co ope rate with the levy, and would send Thoma s all money Offer Specialist responsible for evaluating debtor’s second
due to appellant including the money from the Cordis settlement, which offer in compromise, testified that he did not know about
he exp ected would be paid to the law firm by Novembe r 15, 199 5.
No. 02-5523 In re Gardner 7 8 In re Gardner No. 02-5523
Gardner’s use of the nominee account belonging to his Pursuant to Chapter 7 of the Bankruptcy Code, a debtor is
secretary at the time he evaluated the offer. Brandon testified generally granted discharge from debts that arose prior to the
that he learned of nominee accounts at Gardner’s law firm filing of the bankruptcy petition. See 11 U.S.C. § 727(b).
(the former escrow account) and Gardner’s accountant’s firm However, that general rule faces various exceptions set forth
while considering the offer in compromise, but had been in Section 523 of the Code. Pertinent to the instant action,
unable to obtain any information about those accounts even Section 523(a)(1)(C) provides:
after requesting such information.
(a) a discharge under § 727, . . . of this title does not
The United States submitted evidence concerning discharge an individual debtor from any debt--
Gardner’s profligate lifestyle after he incurred the tax (1) for a tax or customs duty--
liabilities for 1990 and 1991. That lifestyle included (c) with respect to which the debtor made a
numerous golfing junkets throughout the United States, fraudulent return or wilfully attempted in
vacations to Europe and the Caribbean and the yearly any manner to evade or defeat such tax.
expenditure of over $25,000 to maintain his country club
memberships. 11 U.S.C. § 523(a)(1)(C). That exception serves to limit the
Bankruptcy Code’s discharge of tax debts to the honest but
The bankruptcy court determined that the United States had unfortunate debtor. Grogan v. Garner, 498 U.S. 279, 286-87
met its burden of proving that Gardner had willfully (1991).
attempted to evade his tax liabilities within the meaning of
Section 523(a)(1)(C). The court pointed to evidence of The Sixth Circuit has interpreted the Code’s phrase
Gardner’s “lavish” lifestyle, his concealed nominee accounts “wilfully attempted in any manner to evade or defeat such
and concluded that appellant had the ability to pay the taxes. tax” as requiring a voluntary, conscious, and intentional
The court also observed that Gardner had “dishonored the evasion. In re Toti, 24 F.3d 806, 809 (6th Cir.), cert. denied,
‘tacit agreement’ with Thomas to pay the taxes in full with 513 U.S. 987 (1994). This court’s opinion in Toti cast a wide
the proceeds of a large settlement.” On appeal, the district net, concluding that § 523(a)(1)(C) included attempts to
court affirmed, concluding that “reasonable and fair thwart payment of taxes. See United States v. Sumpter, 64
inferences from the evidence” supported the bankruptcy F.3d 663, 1995 WL 501947 at *3 (6th Cir. Aug. 22, 1995)
court’s determination. Gardner made this timely appeal (unpublished) (noting that the “unambiguous language of the
pursuant to 28 U.S.C. § 158. statute” encompasses attempts to thwart taxes). Thus, Toti
clarified that § 523(a)(1)(C) covered both acts of omission,
On appeal from a bankruptcy court, a district court applies such as failure to file returns and failure to pay taxes, and acts
the clearly erroneous standard of review to findings of fact, of commission, such as affirmative acts of evasion. Toti, 24
and reviews questions of law de novo. On appeal of a F.3d at 809. Moreover, while nonpayment alone is
bankruptcy decision from a district court, this court employs insufficient to bar discharge of a tax obligation, a “knowing
the same standards, evaluating the bankruptcy court’s and deliberate” nonpayment provides the basis for
decision directly, without being bound by the district court’s determining that the tax debt is non-dischargeable. See In re
legal determinations. In re M.J. Waterman & Associates, Birkenstock, 87 F.3d 947, 952 (7th Cir. 1996).
Inc., 227 F.3d 604, 607 (6th Cir. 2000); In re Lawrence S.
Charfoos, 979 F.2d 390, 392 (6th Cir. 1992).
No. 02-5523 In re Gardner 9 10 In re Gardner No. 02-5523
The government must prove by a preponderance of the On appeal, Gardner has argued that this court should
evidence that the debtor willfully attempted to evade the tax decline to follow its own precedent enunciated in In re Toti.
liability. Section 523(a)(1)(C) renders a tax debt non- Gardner has urged this court to find Toti inapplicable because
dischargeable where the debtor willfully attempted to evade it involved an attempt to defeat the assessment of a tax and
or defeat payment of the taxes, even though the debtor, as in not an attempt to defeat the payment of a tax. Instead,
the instant case, did not attempt to defeat the assessment of Gardner has suggested adopting the reasoning of In re Haas,
the taxes. In re Griffith, 206 F.3d 1389, 1396-97 (11th Cir. 48 F.3d 1153 (11th Cir. 1995), concluding that § 523(a)(1)(C)
2000). does not apply to attempts to evade or defeat the payment of
taxes only their assessment.
The case law has divided the analysis into two segments–
a conduct requirement and a mental state requirement. United Gardner’s argument fails for several reasons. First, the
States. v. Fretz (In re Fretz), 244 F.3d 1323, 1327-29 (11th court in Toti refused to distinguish between the payment and
Cir. 2001). The government satisfies the conduct requirement assessment of a tax liability for purposes of discharge under
when it proves the debtor engaged in affirmative acts to avoid § 523(a)(1)(C), stating that “[t]he district court correctly held
payment or collection of the taxes. Placing assets in the name that failure to file a tax return and failure to pay a tax fall
of others, as Gardner did in this case by using nominee within the definition in § 523(a)(1)(C) of a willful attempt to
accounts for depositing large sums of his income, amounts to evade or defeat a tax liability.” Toti, 24 F.3d at 809. Second,
an affirmative act of tax evasion. See United States v. McGill this court is bound by the published opinion in Toti. See
964 F.2d 222, 230 (3d Cir. 1992). Under the mental state United States v. Roper, 266 F.3d 526, 530 (6th Cir. 2001).
requirement, the government must prove the debtor Third, Haas simply no longer reflects the applicable law in
voluntarily, consciously, and knowingly evaded payment. the Eleventh Circuit, having been overruled by a unanimous
Toti, 24 F.3d 809. The mental state requirement is proven en banc opinion of the Eleventh Circuit. In re Griffith, 206
when the debtor: F.3d 1389, 1392 (11th Cir. 2000).4
(1) had a duty to pay taxes; Moreover, Gardner’s reliance on In re Sonnenberg, 148
(2) knew he had such a duty; and B.R. 35 (N.D. Ill. 1992), and In re McDonald, 249 B.R. 312
(3) voluntarily and intentionally violated that duty (E.D. Mo. 1999), is misplaced. In those two cases the
bankruptcy courts held that the government failed to meet its
Fretz, 244 F.3d at 1330. burden of proving the debtors had willfully attempted to
evade or defeat payment of their taxes. Unlike appellant’s
The bankruptcy court concluded that the government had conduct in the instant case, neither Sonnenberg nor McDonald
proved Gardner’s intent to evade payment of the taxes by
proving (1) that the debtor lived lavishly during the period of
time the IRS sought to collect the tax liability, (2) that 4
Mo reover, five other Circu its have re jected Haas’s narrow
Gardner used nominee bank accounts to conceal from the IRS interpretation that § 523(a)(1)(C) of the Co de do es not enco mpass
large deposits of income not reflected on the required attemp ts to evade or defeat the paym ent of taxes. See Griffith, 206 F.3d
financial statements, and (3) that the appellant had the ability at 1393. citing In re Fegeley, 118 F.3d 979, 983 (3d Cir.1997); In re
to pay the taxes. Birkenstock, 87 F .3d 9 47, 9 51-5 2 (7th Cir.1996 ); Dalton v. IRS, 77 F.3d
1297, 130 1 (10th Cir.199 6); In re T udisco, 183 F.3d 133, 137 (2d
Cir.1999 ); In re Bruner, 55 F .3d 1 95, 2 00 (5th Cir.199 5).
No. 02-5523 In re Gardner 11 12 In re Gardner No. 02-5523
engaged in acts to prevent collection of their unpaid taxes, that estoppel may lie against the government in some
such as the use of nominee accounts, or the intentional circumstance, “[a]t the very minimum, some affirmative
fabrication of financial information submitted to the IRS. misconduct by a government agent is required as a basis of
Sonnenberg, 148 B.R. at 38; McDonald, 249 B.R. at 318. estoppel.” United States v. Guy, 978 F.2d 934, 937 (6th Cir.
Accordingly, those decisions do not undermine the 1992). The record has provided no evidence of affirmative
bankruptcy court’s factual determination, in the instant case, misconduct by IRS agents handling Gardner’s case.5
that Gardner had willfully attempted to evade or defeat
payment of his tax liabilities. Debtor has further contended that the IRS “did not care
about the inconsequential sums of money” in those accounts
The evidence in the record supports the bankruptcy court’s and never intended to collect his liabilities from those
determination that Gardner attempted to evade or defeat accounts. This contention finds no support in the record.
payment of his tax liabilities. The debtor concealed assets These accounts held nearly $400,000 between 1992 and 1995,
from the IRS by using several nominee accounts and by a not inconsequential sum. Moreover, the notion that the IRS
failing to disclose his use of those accounts in a prompt would not have looked to the nominee accounts to satisfy
manner to agency officials. See In re Birkenstock, 87 F.3d at Gardner’s outstanding tax liabilities had it known of the large
951 (“where nonpayment is coupled with . . . measures to sums deposited defies common sense and garners no support
conceal assets from the IRS . . . a court may reasonably find from the testimony of IRS officials involved in the case.
that the debtor sought to ‘evade or defeat’ his tax liabilities”); Keith Thomas, for instance, testified that he would not have
Dalton v. IRS, 77 F.3d 1297, 1302 (10th Cir. 1996). See also processed either of debtor’s settlement offers had he known
United States v. McGill, 964 F.3d 222, 230 (3d Cir. 1992) about the debtor’s $90,000 deposit into the nominee account
(finding that nominee accounts are well known devices to belonging to debtor’s secretary, or had he known about the
shield assets from the tax authorities). In the instant case, $500,000 Gardner received in May 1993.
appellant used a checking account belonging to his secretary
and her husband into which he deposited approximately Gardner has also maintained that the financial forms he
$90,000 during August and September 1992. Gardner also submitted to the government did not require him to disclose
used a client escrow account at his law firm into which he the existence of the nominee accounts because those forms
deposited more than $200,000 between December 1993 and sought only information about accounts held in appellant’s
October 1995. Debtor additionally used an account set up by own name. Contrary to appellant’s assertion, the CIS form
his accountant in 1993. Finally, in 1995 and 1996 Gardner does not provide taxpayers with the kind of loophole
used an account in his wife’s former married name into which suggested by Gardner, but requests instead all information
he deposited more than $100,000.
On appeal, Gardner has asserted that the United States 5
To the contrary, accord ing to the record evidenc e, Keith Thomas,
should be equitably estopped from challenging the the IRS collection agent assign ed to debtor’s case, did not learn about the
dischargeability of his 1990 and 1991 tax liabilities. This nominee accounts until 1999, during the course of the instant litigation.
argument lacks merit. First, the Supreme Court has left open W hile John Brandon, the IRS Offer Specialist who eva luated Gardner’s
the question of whether equitable estoppel may ever lie second offer to compromise his tax liabilities, learned of the nominee
against the government. Office of Personnel Management v. account at the law firm and that set up by Gardner’s accountant, he never
received information about those accounts from the debtor even though
Richmond, 496 U.S. 414, 419 (1992). Second, even assuming he req uested information o n several occasions.
No. 02-5523 In re Gardner 13 14 In re Gardner No. 02-5523
relevant to a person’s financial condition, including “cash” question constituted an “omission” that demonstrated the
and “recent transfers of assets for less than full value” – conduct element of Section 523(a)(1)(C), because he
categories that encompassed the money Gardner was persuaded the Revenue Agents to defer collection activity
depositing into the nominee accounts. with respect to those liabilities by promising to pay the
outstanding amount with proceeds received from the
Moreover, Gardner not only used the nominee accounts to settlements of his pending cases.
shield his assets from the IRS, he additionally failed to honor
his commitment to the IRS to use funds obtained from the Finally, Gardner had the financial means to meet his
settlements of large cases to satisfy his liabilities. Gardner’s outstanding tax liabilities. In reviewing Gardner’s
receipt of $500,000 in May 1993, attributable to the expenditures during the collection period, between September
settlement of the Robinson case was not used to pay his 1992 and June 1995, the bankruptcy court noted twenty
outstanding 1990 or 1991 taxes.6 Indeed, debtor did not even golfing and vacation trips upon which appellant lavished
inform the government of the Robinson settlement. substantial sums. Gardner has contended on appeal that the
Gardner’s failure to apply any monies from that settlement, or bankruptcy court erred by refusing to credit his testimony that
from the Cordis settlement,7 to his outstanding liabilities in most of the trips were business related. However, the
bankruptcy court was not obligated to accept Gardner’s
characterization of his activities. See Lovell and Hart, Inc. v.
6
Although Gardner used $20 9,00 0 of the Robinson settlement to Commissioner, 456 F.2d 145, 148 (6th Cir. 1972) (court not
make an estimated tax payment for 1993 and he may have used $60,000 required to credit self-serving testimony, even if
of the amount to pay State taxes, he did not use any portion of the uncontradicted, if it finds the testimony improbable,
remaining $231,000 to pay his 1990 or 19 91 taxes. In his appellate brief, unreasonable, or questionable). In the instant case, appellant
debtor contends that he allocated $100,000 of the distribution he received
from his law firm to fund the offer in comp romise that was pen ding failed to introduce any evidence that he claimed business-
before the IRS. That statem ent is at od ds with the debtor’s testimony in expense deductions for the expenses he incurred on his
the bankruptcy court that he wo uld have had to borrow the $100 ,000 if the vacations. Moreover, a careful review of the evidence
offer had been accepted. adduced at trial demonstrated that any business-related
7 activities engaged in by appellant were insubstantial in
Gardner informed Keith Thomas in April 1995 o f his firm’s comparison to his recreational activities.
representation of a plaintiff in the $21 million Cordis class-action lawsuit.
Appellant testified that he had explained to Thom as that he was not the
working attorney nor the originating attorn ey with respect to the Cordis
The evidence in the record also supports the mental state
case. After Gardner led Th omas to believe that his law firm would not requirement of § 523(a)(1)(C) that Gardner “willfully”
pay debtor h is 4 0% share of the anticipated contingency fee to the avoided payment of his tax liabilities for 1990 and 1991.
partnership, Thomas issued a levy on the partnership. Gardner Appellant acknowledged before the bankruptcy court that he
subsequently filed this bankruptcy case and, contrary to his representation was aware of his legal responsibility to pay the taxes in issue.
to Thomas, ultimately collected his share of the settlement proceeds
($170,000) from his law firm. Rather than dismiss this bankrup tcy case
and use those funds to fulfill his promise to T hom as to satisfy his
obligations to the IRS, debtor pocketed the settlement proceeds and
sought to have his tax obligations discharged in bankruptcy. The filing “suspect,” when two months after filing G ardner received his
bankruptcy court not only found Gardner’s explanation with regard to the distribution generated by the Cordis settlement. As further evidence of
levy “disingenuous,” as avoiding the question of why Gardner dishonored evasive conduct, Gardner, in providing a list of pending cases requested
his agreement with Thomas, but also found the timing of the bankruptcy by the trustee in the bankruptcy case, o mitted the Co rdis settlem ent.
No. 02-5523 In re Gardner 15
Gardner also testified he could have used some of the $688,
932 he earned in 1993 to pay his 1990 and 1991 taxes, but
that he made a conscious decision not to apply the monies
toward his tax debt. Given these facts, the bankruptcy court
properly found that Gardner acted “willfully” with respect to
his 1990 and 1991 tax obligations for purposes of
§ 523(a)(1)(C), precluding discharge of his tax liabilities.
Consequently, this court affirms the bankruptcy court’s
determination.