United States v. Patridge, Denny R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3635
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNY R. PATRIDGE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-20031-001—Michael P. McCuskey, Chief Judge.
____________
No. 06-3785
DENNY R. PATRIDGE and JUDY PATRIDGE,
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
____________
Appeal from the United States Tax Court
No. 1551-06L—Peter J. Panuthos, Judge.
____________
ARGUED SEPTEMBER 5, 2007—DECIDED NOVEMBER 14, 2007
____________
2 Nos. 06-3635 & 06-3785
Before EASTERBROOK, Chief Judge, and WOOD and
EVANS, Circuit Judges.
EASTERBROOK, Chief Judge. Denny Patridge, who
owned an insurance agency, decided to make life hard
for the revenooers by transferring his income to an off-
shore trust and then pretending that he had no income.
The first trust in line, located in Antigua, transferred
everything to a second trust, in Belize. The second trust
transferred the money to a third trust (also in Belize),
which “loaned” it back to Patridge, who conveniently
never paid interest or repaid any of the “debt.” When
applying for credit, Patridge treated the proceeds from
Trust #3 as income and claimed to have no debts. Trust #1
and Trust #2 filed tax returns, each claiming to have
expenses exactly equal to its income. Trust #3 never
filed a tax return. Patridge himself filed returns in some
years, though not in others, and claimed to have negligible
income. After an audit, the IRS concluded that Patridge’s
income was significant and that he owed $74,279 in taxes
for 1996 and $49,836 for 1997. Penalties took the total to
$130,736 (plus interest) for 1996 and $88,675 (plus
interest) for 1997.
Patridge refused to cooperate with the audit and did
not contest the deficiency determination and assessment
until learning that a criminal investigation was under
way—and by then it was too late. But when the IRS tried
to levy on his assets, Patridge demanded a hearing under
26 U.S.C. §6330, which allows taxpayers to contest the
time and manner of payment on a tax debt. Instead of
presenting arguments about how and when the debt
would be paid, however, Patridge tried to dispute his
liability, a subject that Congress placed off limits to
avoid a collateral attack on matters already resolved.
26 U.S.C. §6330(c)(2)(B). Told that he could obtain review
exclusively in the Tax Court, Patridge (represented by
counsel) instead filed suit in the United States District
Nos. 06-3635 & 06-3785 3
Court for the Central District of Illinois. When, as was
inevitable, that suit was dismissed for lack of jurisdiction,
see Patridge v. Internal Revenue Service, No. 06-1155 (Nov.
13, 2006) (unpublished order), he turned at last to the
Tax Court, where his action was doomed by §6330(c)(2)(B).
Meanwhile Patridge had been indicted for tax evasion,
money laundering, and wire fraud. Still represented by
the same lawyer, he dragged out the jury trial for 13 days
but was convicted. He has been sentenced to 60 months’
imprisonment, fined $100,000, and ordered to pay his
back taxes and accumulated penalties.
Patridge’s brief in the criminal appeal presents 19
issues, all frivolous. Many are in the style of tax-protest
arguments that we might expect from a layman represent-
ing himself but do not expect to see in a brief filed by a
member of the bar. For example, although counsel con-
cedes that a person who earns income cannot avoid taxes
by appointing it to a third party—here, by remitting
the income to Trust #1—he insists that the maneuver
may be penalized only if the taxpayer knows that
26 U.S.C. §7201 is the section of the Internal Revenue
Code that makes the dodge unlawful.
Cheek v. United States, 498 U.S. 192 (1991), holds that
a person may be convicted of tax offenses only if he
knows that the Code requires him to pay. The jury was
so instructed, and its verdict shows that it found, beyond
a reasonable doubt, that Patridge knew that he had to
pay taxes on what he made from his business. It is
scarcely possible to imagine otherwise: the system of
offshore trusts, and the fictive “loans,” show that Patridge
was trying to hide income that he knew to be taxable. Why
else all this folderol? Yet Patridge, in common with many
other people who know what the law requires, could not
say just which provisions of the Code make income
taxable and prevent evasion. For that matter, many tax
4 Nos. 06-3635 & 06-3785
lawyers (and most judges) could not rattle off the citations
without glancing at a book. This shortcoming of memory
(perhaps, for Patridge, a deliberate avoidance of knowl-
edge) prevents criminal punishment, counsel insists.
But why would this be so? No statute says it; no opinion
holds it. Cheek derived its knowledge-of-law requirement
from the fact that §7201 makes only “willful” tax evasion
criminal. An act is willful for the purpose of tax law, the
Court concluded, when the taxpayer knows what the Code
requires yet sets out to foil the system. Knowledge of
the law’s demands does not depend on knowing the
citation any more than ability to watch a program on TV
depends on knowing the frequency on which the signal
is broadcast.
Patridge insists that the indictment was premature,
and the conviction invalid, because he was pursuing re-
lief under §6330. This argument—which like others in
counsel’s brief lacks the benefit of either statutory sup-
port or any judicial decision—supposes that the crime
of tax evasion is not complete until the IRS is unable to
collect. That’s nonsense. Patridge’s crime entailed the
use of three trusts to conceal his income. It was complete
when these acts were performed and the tax year passed
without payment. Patridge’s resort to §3660 in an effort
to string out the process may be an aggravating factor
in sentencing but does not undermine the conviction.
The last of the issues we address is Patridge’s conten-
tion that the Paperwork Reduction Act of 1980, 44 U.S.C.
§§ 3501–21, forecloses his conviction. This contention is
as weak as the other 18, but it has been raised in several
recent appeals—despite the fact that it was considered
and rejected in Salberg v. United States, 969 F.2d 379(7th Cir. 1992)—so we take this occasion to hold that the
1995 amendments to the Act do not alter Salberg’s con-
clusion.
Nos. 06-3635 & 06-3785 5
Section 3507 provides that an agency needs the ap-
proval of the Office of Management and Budget to collect
information, and §3512(a)(1) adds that “no person shall
be subject to any penalty for failing to comply with a col-
lection of information that is subject to this subchapter”
unless OMB’s approval is evinced by a “valid control
number” on the agency’s demand for information. Per
§3507(g), OMB “may not approve a collection of informa-
tion for a period in excess of 3 years.” Patridge observes
that the IRS’s Form 1040 has displayed the same control
number since 1981 and argues that it must therefore
represent an approval lasting for more than 3 years.
Moreover, he asserts that the IRS did not obtain a
new approval between the 1995 amendments and the
adoption of forms for tax years 1996 and 1997, so these
forms must be (in counsel’s words) “outlaw and bootleg.”
Finally, Patridge contends that all IRS forms are invalid
because they do not tell taxpayers that the lack of a valid
control number means that they need not supply any
information.
How any of this could block a conviction for tax evasion
is a mystery. Patridge evaded taxes by shuffling his
income among trusts in an attempt to conceal it from the
IRS. That crime does not depend on the contents of any
form. Evading one’s taxes is illegal independent of the
information one does or does not supply. Consider
another example: the Clean Air Act requires businesses
to curtail certain emissions using the best available
technology, and to report on those emissions to the EPA.
An error in the EPA’s forms might spare the business
any penalties for bad information but would not license
it to emit pollution without limit. The Paperwork Reduc-
tion Act does not change any substantive obligation.
Anyway, as we held in Salberg, the obligation to file a
tax return stems from 26 U.S.C. §7203, not from any
agency’s demand. The Paperwork Reduction Act does not
6 Nos. 06-3635 & 06-3785
repeal §7203. Repeal by implication depends on inconsis-
tency that makes it impossible to comply with the newer
law while still honoring the old one, see Branch v. Smith,
538 U.S. 254, 273 (2003); J.E.M. Ag Supply, Inc. v. Pioneer
Hi-Bred International, Inc., 534 U.S. 124, 141–44 (2001),
and there is no such inconsistency between §7203 and
the Paperwork Reduction Act. One reason for this is
that §7203 requires a “return” but does not define that
word or require anyone to use Form 1040, or any “official”
form at all. All that is required is a complete and can-
did report of income.
Finally, we have no doubt that the IRS has complied
with the Paperwork Reduction Act. Form 1040 bears a
control number from OMB, as do the other forms the IRS
commonly distributes to taxpayers. That this number
has been constant since 1981 does not imply that OMB
has shirked its duty. Section 3507 requires periodic
review, not a periodic change in control numbers. Patridge
offers us no reason to think that the necessary review has
not been conducted. The control number on Form 1040
appears on OMB’s web site as a current, valid number; if
this is wrong, it takes more than a lawyer’s say-so to
establish the proposition. That OMB didn’t re-review Form
1040 between the 1995 and 1996 tax year is irrelevant;
nothing in the 1995 amendments says that all existing
approvals become invalid or that all forms must be re-
submitted.
None of the remaining 16 arguments in the criminal
appeal requires comment. The appeal from the Tax Court
is equally frivolous. Section 6330(c)(2)(B) says point
blank that a request for a hearing on the details of col-
lection does not require (or even permit) the IRS to
reconsider the taxpayer’s substantive obligations. Patridge
could have cooperated with the audit but refused; he could
have sought review of the assessment in the Tax Court
but failed to do so. The current proceeding is nothing
but obstructionism.
Nos. 06-3635 & 06-3785 7
Jerold W. Barringer represented Patridge at trial, in the
Tax Court, and during the three appeals to this court. He
has performed below the standard of a pro se litigant; we
have serious doubt about his fitness to practice law. The
problem is not simply his inability to distinguish between
plausible and preposterous arguments. It is his disdain
for the norms of legal practice (19 issues indeed!) and the
rules of procedure. Take, for example, Fed. R. App. P.
28(a)(7), which requires every appellant’s brief to contain
“a statement of facts relevant to the issues submitted
for review with appropriate references to the record”.
Circuit Rule 28(c) adds: “The statement of facts re-
quired by Fed. R. App. P. 28(a)(7) shall be a fair summary
without argument or comment. No fact shall be stated
in this part of the brief unless it is supported by a refer-
ence to the page or pages of the record or the appendix
where that fact appears.” So what did Barringer write as
a “fair summary without argument or comment”? Here is
the complete text of his “STATEMENT OF THE FACTS”:
This case is about due process and the Fifth and
Sixth. The indictment was defective and revolved
around a theory of law section 7201 cannot support.
The term “willful” cannot support. There was no
evidence of willfulness regarding knowledge of the
facts and there is no evidence of willfulness regarding
knowledge of the law required to be alleged in the
indictment and proved beyond a reasonable doubt at
trial. The Paperwork Reduction Act of 1995 forbid the
indictment from being returned. There was no fraud in
any wire and there was no laundering of any money
from an illegal source. The jury was clearly confused
by the Court’s usage of evade and avoid interchange-
ably. The District Court relied upon the
wrong Sentencing Guidelines and found facts to give
Appellant 60 months in prison when the sentence
should have been probation.
8 Nos. 06-3635 & 06-3785
This contains not a single fact and verges on illiteracy.
One might think that Barringer had confused the “State-
ment of Facts” section with the “Summary of Argument”
required by Rule 28(a)(8), except that this passage does not
contain any argument (it is argument free, though full of
assertion) and is immediately followed by a six-page-
long “SUMMARY OF APPELLANT’S ARGUMENTS”.
Noncompliance with Rule 28(a)(7) is not an isolated
problem. To avoid tedious length, we’ll limit ourselves to
one more example. Circuit Rule 30(a) provides: “The
appellant shall submit, bound with the main brief, an
appendix containing the judgment or order under review
and any opinion, memorandum of decision, findings of fact
and conclusions of law, or oral statement of reasons
delivered by the trial court or administrative agency
upon the rendering of that judgment, decree, or order.”
Circuit Rule 30(b)(1) adds that the appendix also must
contain “[c]opies of any other opinions, orders, or oral
rulings in the case that address the issues sought to be
raised. If the appellant’s brief challenges any oral ruling,
the portion of the transcript containing the judge’s ratio-
nale for that ruling must be included in the appendix.” To
make sure that counsel are aware of these requirements,
we require every appellate lawyer to certify in writing
that the brief complies with these rules. Circuit Rule 30(d).
Lack of a statement under Rule 30(d) tells the clerk’s
office that counsel is unaware of the rule, and the brief
will be rejected; but a brief with the required statement
will be accepted, because our staff is not able to look
behind the certificate to determine whether all of the
essential materials have been included—and they really
are “essential,” because without knowing why the dis-
trict court did what it did, we can’t assess claims that the
court erred.
Barringer’s brief contains this statement: “I, Jerold
Barringer, certify by my signature above I have included
Nos. 06-3635 & 06-3785 9
all of the materials required by parts (a) and (b) of Circuit
Rule 30 in the appendix for the Appellant.” The brief
was accepted. But the representation is false—whether
deliberately so, or as a result of Barringer’s inability to
comprehend Rule 30, we cannot know. The only document
“bound with the main brief ” is the judgment of conviction.
None of the district court’s opinions and other explana-
tions is attached to the brief. We eventually tracked
down three that should have been included. Two concern
Barringer’s motions to dismiss the indictment; one denies
a motion for a judgment of acquittal. The district judge’s
oral statement of reasons for the 60-month sentence should
have been transcribed and included but was not. These
omissions complicated our task of review.
This court regularly fines lawyers who violate Circuit
Rule 30 yet falsely certify compliance under Circuit Rule
30(d). E.g., United States v. White, 472 F.3d 458, 465–66
(7th Cir. 2006); United States v. Evans, 131 F.3d 1192 (7th
Cir. 1997); In re Galvan, 92 F.3d 582 (7th Cir. 1996). We
also regularly penalize unrepresented litigants who
advance frivolous tax-protest-style arguments. E.g., Szopa
v. United States, 453 F.3d 455, after reconsideration, 460
F.3d 884 (7th Cir. 2006) (setting $4,000 as the presumptive
sanction for frivolous tax appeals, doubled for repeat
offenders). Members of the bar must be held to standards
at least as high as those of unrepresented litigants.
Barringer is a recidivist; he ignored our 2006 decision
reminding him that taxpayers cannot use a request for
a collection hearing to contest their substantive liability.
We therefore give Barringer 14 days to show cause why
he should not be fined $10,000 for his frivolous argu-
ments and noncompliance with the Rules, and why he
should not be suspended from practice until he demon-
strates an ability to litigate an appeal competently and
responsibly. See Fed. R. App. P. 38, 46(b), (c).
AFFIRMED; ORDER TO SHOW CAUSE ISSUED
10 Nos. 06-3635 & 06-3785
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-14-07