Szopa, Sophie v. White, Prescilla ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4788
SOPHIE A. SZOPA,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 05 C 1751—William J. Hibbler, Judge.
____________
SUBMITTED MAY 25, 2006—DECIDED JULY 5, 2006
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Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Sophie Szopa maintains
that only corporations and foreign citizens need pay income
taxes. The Internal Revenue Service sent her a notice of
intent to levy on her assets to satisfy income taxes due for
the years 1991 through 2000. A levy may be postponed or
canceled if, for example, the taxes are attributable to a
spouse’s income and an “innocent spouse” defense is
available; a taxpayer also may propose a collection schedule
or some other less drastic way to retire the debt. 26 U.S.C.
§§ 66(c), 6015(b). The IRS affords an administrative
opportunity to ask for such relief. 26 U.S.C. §6330(b). Szopa
requested a hearing under this section but offered only tax-
protester arguments, and the IRS turned her down. Her
2 No. 05-4788
position was doubly frivolous: first because by the time a
notice of levy has been sent it is too late to contest the
assessment of taxes, and second because Szopa offered no
objection to the proposed means and timing of collection.
The IRS told her that if she was dissatisfied by its decision
she could obtain review in the United States Tax Court. See
26 U.S.C. §6330(d)(1).
Piling frivolous litigation on frivolous argumentation,
Szopa ignored this advice and filed suit in the United States
District Court, contending that she is entitled to review by
a district court because the Tax Court would lack jurisdic-
tion. (Adding a frivolous fillip, she sued not the United
States or the Commissioner of Internal Revenue, the only
arguably proper parties, but Prescilla White, the manager
of the administrative group that had rejected her request
for a hearing. We have substituted the United States as the
defendant.) Szopa maintained that the Tax Court cannot
entertain litigation about what Szopa insists is an “employ-
ment tax” rather than an “income tax.” Moreover, she
asserts, the Tax Court is not a “court”—notwithstanding its
name, its governing statutes, and Freytag v. CIR, 501 U.S.
868, 890-91 (1991)—and cannot resolve disputes about
points of law. Even administrative agencies can and do
handle legal arguments all the time. Courts of appeals
regularly address on appeal legal arguments that have been
resolved by the Tax Court. The district court therefore
followed the statute and dismissed the suit for lack of
jurisdiction because Szopa’s claim could have been filed in
and resolved by the Tax Court. 26 U.S.C. §§ 6212(a),
6330(d)(1), 7442.
Szopa’s argument in this court depends on the proposition
that, because she is a U.S. citizen, the tax assessed against
her must be an “employment tax” and all disputes about its
collection are outside the Tax Court’s purview. There is no
excuse for persistence in such a foolish argument. She has
been told by the IRS, by the district judge, and by Congress
No. 05-4788 3
(in the Internal Revenue Code) that the tax is imposed on
income, not employment. We told her this ourselves a few
years ago. Szopa and her husband failed to satisfy their
obligations for the tax years 1983 through 1988, and in an
opinion rejecting the Szopas’ arguments we called the sums
they owed “income taxes.” See United States v. Szopa, 2000
U.S. App. LEXIS 3353 (7th Cir. Mar. 1, 2000) (unpublished
order). Szopa’s current position reflects obduracy and
recalcitrance rather than ignorance or confusion. She is
trying to throw sand in the gears.
Frivolous litigation is sanctionable. Fed. R. App. P. 38.
Twenty years ago we set $1,500 as the normal sanction for
an appeal resting on tax-protest arguments. See Coleman
v. CIR, 791 F.2d 68 (7th Cir. 1986). Ten years ago we upped
the ante to $2,000 in light of inflation. See Cohn v. CIR, 101
F.3d 486 (7th Cir. 1996). These numbers roughly reflected
the sums that, according to the Justice Department, had
been required to respond to frivolous tax appeals in 1985
and 1995.
Now the Department proposes a big increase—to $8,000,
somewhat less than the $11,042 that it says represents “the
average expense in attorney salaries and other costs
incurred by [the Tax Division] in the defense of frivolous
taxpayer appeals in which sanctions were awarded dur-
ing 2004 and 2005”. (A footnote tells us that the Depart-
ment “eliminated from consideration instances in which
significantly greater amounts of attorney time were
devoted . . . than are typically reported for such cases.”) The
Department does not give details, however, or explain why
the expense of briefing frivolous appeals has shot up.
Adjusting for inflation using the Consumer Price Index,
$1,500 in 1985 dollars comes to $2,722.58 in 2005 dollars.
How is it that the Department now spends in real dollars
four times as much per frivolous appeal as it did 10 and
20 years ago?
4 No. 05-4788
A tax lawyer in grade GS-15 earns between $91,000 and
$143,000 a year, depending on tenure and locality adjust-
ments that reflect the higher cost of living in large cities.
Let us suppose that the average is $125,000 a year—
though this seems high, as much of the work in frivolous
appeals should be assigned to junior lawyers. Let us
suppose as well that indirect costs (fringe benefits, the
expense of secretaries and fact-checkers, etc.) double the
effective cost. Then the federal government pays $250,000
to support one year’s work by a tax lawyer. If federal
lawyers work 220 days a year (a figure that allows for a
month’s vacation plus all federal holidays), that comes to
$1,136 per day for legal services. The Tax Division’s
assertion that it costs $11,042 to respond to a frivolous
appeal implies that each case occupies a senior tax lawyer
for ten full days. (Frivolous cases are not argued in this
circuit or most of the other circuits; there is no need to
consider travel time and expenses.) If this is really how the
Department of Justice staffs these cases, it needs to rethink
its assignment practices.
The Tax Division’s brief in this appeal is 16 pages long,
much of it formulaic and doubtless straight from the
glossary function of a word-processing program. Less than
half of the brief is specific to Szopa’s situation; the rest
describes in general terms the pre-levy hearing program
and the way §3660(d) divides review between the Tax Court
and the 94 district courts. The record is short; the district
court’s opinion is one page long; an appellate lawyer would
not have needed more than a few hours to track down all
pertinent details about Szopa’s circumstances. Why would
it take 10 days to produce a brief at the glacial rate of 1.6
pages a day? Other cases may require more work, but it is
hard to imagine that any frivolous tax-protester appeal
would entail a brief exceeding 25 pages. To use more is to
show that the appeal is not frivolous after all. Yet by the
Department’s calculation the appellate lawyer generates
less than three pages a day in frivolous appeals.
No. 05-4788 5
Something must be wrong in these numbers—though
other circuits have accommodated the Department’s
request. See, e.g., Kyler v. Everson, 442 F.3d 1251 (10th Cir.
2006) ($8,000 sanction, exactly as Tax Division proposed);
Stearman v. CIR, 436 F.3d 533, 538-39 (5th Cir. 2006)
(adopting $6,000 presumptive sanction on Tax Division’s
request). At least four more circuits have made similar
awards in unpublished orders. None explains, any more
than the Department itself has done, why these
are appropriate sanctions.
An adjustment to keep this circuit’s sanction constant
in inflation-adjusted dollars is appropriate, so the presump-
tive fine now is $2,700. It may be, however, that the
Department has more to say on behalf of a larger number.
So we will allow it 14 days after this opinion’s issuance to
explain how many days of legal time the Tax Division
devotes (on average) to each frivolous appeal, how the
$11,000 figure was calculated, and why there has been such
a substantial increase since 1995. Szopa will have 10 days
to respond. (She ignored the Department’s Rule 38 motion;
she would do well to use this renewed opportunity to
address the subject.) We then will either stick with the
inflation-adjusted sanction of $2,700 or make a further
change if one has been justified.
One additional adjustment is apt. Repeat offenders are
more culpable, not only because they must know better (and
because the risk of mistake is lower) but also because they
have demonstrated resistance to specific deterrence. Szopa
is a recidivist, having been told by our decision of 2000 that
she owes and must pay income taxes. That she is still in
denial mode six years later, for another set of tax years,
demonstrates the need for sterner action. The presumptive
sanction for second or successive frivolous tax appeals will
be set at double the norm ($5,400 unless adjusted after the
supplemental briefing). This much, at least, is payable
immediately to the Clerk of Court, and if it remains out-
6 No. 05-4788
standing after 10 days we will enter an order under Support
Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir.
1995), blocking Szopa from conducting further civil litiga-
tion as a plaintiff in the courts of this circuit until full
payment has been received.
The judgment of the district court is affirmed, an interim
sanction of $5,400 is imposed, and the United States is
invited to file within 14 days further justification support-
ing a higher award.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-06