Cathy M. Lantz v. CIR ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3345
C ATHY M ARIE L ANTZ,
Petitioner-Appellee,
v.
C OMMISSIONER OF INTERNAL R EVENUE,
Respondent-Appellant.
Appeal from the United States Tax Court.
No. 25078-06—Joseph R. Goeke, Judge.
A RGUED A PRIL 9, 2010—D ECIDED JUNE 8, 2010
Before P OSNER, FLAUM, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. Taxpayers filing a joint return
are jointly and severally liable for the entire tax liability
shown or that should have been shown on their return.
26 U.S.C. § 6013(d)(3). But section 6015 of the Internal
Revenue Code sets forth grounds—“innocent spouse” rules
first added to the Code in 1971 and liberalized since,
Lily Kahng, “Innocent Spouses: A Critique of the New
Tax Laws Governing Joint and Several Tax Liability,”
49 Vill. L. Rev. 261, 264-70 (2004); Svetlana G. Attestatova,
2 No. 09-3345
Comment, “The Bonds of Joint Tax Liability Should Not
Be Stronger Than Marriage: Congressional Intent Behind
§ 6015(c) Separation of Liability Relief,” 78 Wash. L. Rev.
831, 831-41 (2003)—for relieving the signer of a joint
return of his or her joint and several liability for under-
statement or nonpayment of income tax due.
Section 6015(f), captioned “equitable relief,” provides
that “under procedures prescribed by the [Department
of the Treasury], if (1) taking into account all the facts
and circumstances, it is inequitable to hold the individual
liable for any unpaid tax or any deficiency . . . ; and
(2) relief is not available to such individual under sub-
section (b) or (c) [of section 6015], the [Department] may
relieve such individual of such liability.” By regulation
the Treasury has fixed a deadline for filing claims under
subsection (f) of two years from the IRS’s first action
to collect the tax by (for example) issuing a notice of
intent to levy on the taxpayer’s property. 26 C.F.R.
§ 1.6015-5(b)(1); see also IRS Rev. Proc. 2003-61 § 4.01(3); 26
U.S.C. § 6630(a). The Tax Court in a divided opinion
invalidated the deadline in the regulation and the
Internal Revenue Service appeals.
The taxpayer, Cathy Lantz, is a financially unsophisti-
cated woman whose husband, a dentist, was arrested
for Medicare fraud in 2000, convicted, and imprisoned.
They had been married for only six years when he
was arrested and there is no suggestion that she was
aware of, let alone complicit in, his fraud. The IRS
learned that the joint return the couple had filed had
understated their federal income tax liability in the last
No. 09-3345 3
tax year before his arrest, and the Service assessed them
more than $900,000 in additional income tax, penalties,
and interest.
In 2003 Cathy Lantz received from the IRS—in a packet
that included a notice of a proposed levy on her and
her husband’s property—publications explaining the
collection process, alerting the recipient to the possibility
of innocent-spouse relief, and citing an IRS publication
explaining the rights of such a spouse. Included in the
packet was a form for requesting a “collection due pro-
cess” hearing. The taxpayer can indicate that she is
seeking innocent-spouse relief by checking a box on
the form and filing an application for such relief. Lantz
did not respond to the IRS’s communication, however,
because her husband (from whom she had been
estranged since his conviction) told her he’d deal with
the matter. He returned the form requesting a collec-
tion due process hearing and asked to be sent the ap-
plication form for seeking innocent-spouse relief, ex-
plaining that his wife was an “innocent spouse.” But,
assuming he received that form, he died before filing it.
In 2006 the IRS, unable to collect any of its tax assess-
ment from the husband (and by now he was dead),
applied the $3,239 income tax refund for 2005 to which
Lantz would otherwise have been entitled to her joint
(and now several) liability for 1999, which had
grown to more than $1.3 million. Unemployed and impe-
cunious, she applied for innocent-spouse relief but the
IRS turned her down because she’d missed the two-year
deadline from the date (in 2003) on which the Service
4 No. 09-3345
had sent her the notice of intent to file a levy on her
and her husband’s property. The Service concedes
that were it not for the deadline, Lantz would be
eligible for relief. But the concession does not bear on
the validity of the deadline; any statute of limitations
will cut off some, and often a great many, meritorious
claims.
In invalidating the two-year deadline that the Treasury
has imposed on claims under subsection (f), the Tax Court
noted that each of the two other subsections of 26 U.S.C.
§ 6015 that we mentioned, (b) and (c), contains a two-
year deadline, 26 U.S.C. §§ 6015(b)(1)(E), (c)(3)(B), while
subsection (f) does not. From this difference the
court inferred that Congress intended subsection (f)
to have no deadline. The court said that “by explicitly
creating a 2-year limitation in subsections (b) and (c) but
not subsection (f), Congress has ‘spoken’ by its audible
silence.”
Appellate review of pure legal rulings by the Tax Court,
as by a district court, is plenary, 26 U.S.C. § 7482(a)(1);
WellPoint, Inc. v. Commissioner, 599 F.3d 641, 644 (7th Cir.
2010); Kikalos v. Commissioner, 434 F.3d 977, 981 (7th Cir.
2006); Wright v. Commissioner, 571 F.3d 215, 219 (2d Cir.
2009), and administrative regulations issued pursuant to
authority delegated by Congress must be upheld unless
unreasonable. United States v. Mead Corp., 533 U.S. 218, 228-
29 (2001); Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 and n. 11 (1984). But even
if our review of statutory interpretations by the Tax Court
were deferential, we would not accept “audible silence” as
No. 09-3345 5
a reliable guide to congressional meaning. “Audible
silence,” like Milton’s “darkness visible” or the Zen koan
“the sound of one hand clapping,” requires rather than
guides interpretation. Lantz’s brief translates “audible
silence” as “plain language,” and adds (mysticism must be
catching) that “Congress intended the plain language of
the language used in the statute.”
Whatever any of this means, the Tax Court’s basic
thought seems to have been that since some statutes (in
this case, some provisions of a statute) prescribe deadlines,
whenever a statute (or provision) fails to prescribe a
deadline, there is none. That is not how statutes that omit
a statute of limitations are usually interpreted. Courts
“borrow” a statute of limitations from some other
statute in order to avoid the absurdity of allowing suits
to be filed centuries after the claim on which the suit was
based arose. Agency Holding Corp. v. Malley-Duff & Associ-
ates, Inc., 483 U.S. 143, 146-57 (1987); DelCostello v. Int’l
Brotherhood of Teamsters, 462 U.S. 151, 158-62 (1983); Team-
sters & Employers Welfare Trust of Illinois v. Gorman Brothers
Ready Mix, 283 F.3d 877, 880 (7th Cir. 2002). They bor-
row an existing statute of limitations rather than create
one because “the length of a limitations period is arbi-
trary—you can’t reason your way to it—and courts are
supposed not to be arbitrary; when they are, they get
criticized for it.” Hemmings v. Barian, 822 F.2d 688, 689 (7th
Cir. 1987). Courts even say that in borrowing a statute
of limitations from one statute for use in another they
are doing Congress’s will: “Given our longstanding
practice of borrowing state law, and the congressional
awareness of this practice, we can generally assume that
6 No. 09-3345
Congress intends by its silence that we borrow state
law.” Agency Holding Corp. v. Malley-Duff & Associates,
Inc., supra, 483 U.S. at 147.
Agencies, in contrast, being legislative as well as
adjudicatory bodies, are not bashful about making up
their own deadlines. See, e.g., Johnson v. Gonzales, 478 F.3d
795, 798-800 (7th Cir. 2007); Swallows Holding, Ltd. v.
Commissioner, 515 F.3d 162, 170-72 (3d Cir. 2008); Stearn
v. Department of Navy, 280 F.3d 1376, 1381-84 (Fed. Cir.
2002); Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir. 2001);
Withey v. Perales, 920 F.2d 156 (2d Cir. 1990). And because
they are not bashful, and because it is as likely that Con-
gress knows this as that it knows that courts like to
borrow a statute of limitations when Congress doesn’t
specify one, the fact that Congress designated a deadline
in two provisions of the same statute and not in a third
is not a compelling argument that Congress meant to
preclude the Treasury Department from imposing a
deadline applicable to cases governed by that third pro-
vision. Whether the Treasury borrowed the two-year
limitations period from subsections (b) and (c) or simply
decided that two years was the right deadline is thus of
no consequence; either way it was doing nothing unusual.
Lantz suggests that because section 6502 of the Code
imposes a 10-year deadline on the government’s right to
collect taxes that it is owed, there is a time limit on claims
for relief under section 6015(f)—ten years—and so the
absurdity of allowing claims under subsection (f) to be
filed until the Day of Judgment is avoided. But this argu-
ment confuses an external circumstance that as a practical
No. 09-3345 7
matter creates a time limit with a statute of limitations.
It is true that if after 10 years from the date of assess-
ment, which itself must take place within three years
after the tax return was filed, the IRS has not moved to
collect the tax by levying on the taxpayer’s property or
wages or sued to collect the tax, it usually has to give
up. 26 U.S.C. §§ 6501(a), 6502(a); United States v. Galletti,
541 U.S. 114, 116 (2004); Clark v. United States, 63 F.3d
83, 84-85 n. 1 (1st Cir. 1995). But to call this a statute of
limitations for claims under subsection (f) is like saying
that claims for defamation have an outside statute of
limitations of 123 years, because the common law rule
(still in force in many states) is that a defamation
claim dies with the death of the victim of the defamation,
Dan B. Dobbs, The Law of Torts § 407, pp. 1139-40
(2000), and according to Wikipedia 122.5 years is the
longest life span verified by modern documentation.
http://en.wikipedia.org/wiki/Longevity (visited Apr. 10,
2010).
More important, the 10-year limit in section 6502 is not
a constraint on taxpayer action. It’s the period within
which the IRS must act to collect a tax. True enough that
if it misses its deadline the taxpayer has no need to
invoke 6015(f). But if it does act within this period, section
6502 imposes no time limit on the taxpayer’s response.
In the case of equitable claims, often the doctrine of
laches (unreasonable delay prejudicial to the defendant,
Kansas v. Colorado, 514 U.S. 673, 687 (1995); Teamsters &
Employers Welfare Trust of Illinois v. Gorman Brothers Ready
Mix, supra, 283 F.3d at 880) is substituted for a fixed
8 No. 09-3345
deadline, and that might seem an attractive way of
limiting the time within which a taxpayer can seek relief
under section 6015(f). The doctrine was developed by the
English equity court before the enactment of the first
statutes of limitations, when the problem of stale claims
was therefore acute. “Even when there were no
statutory periods, the Chancellor in Equity, the ‘King’s
Conscience,’ could withhold relief when the plaintiff’s
delay in coming to Equity was inordinate and had caused
prejudice to the defendant.” Ivani Contracting Corp. v.
City of New York, 103 F.3d 257, 259 (2d Cir. 1997); see
Gail L. Heriot, “A Study in the Choice of Form: Statutes
of Limitation and the Doctrine of Laches,” 1992 B.Y.U. L.
Rev. 917, 923-27 (1992). So laches provides a way of
dealing with a statute that specifies no limitations period.
Equitable claims usually involve ongoing activity—the
plaintiff is trying to stop something that’s going on
now even if the reason lies far in the past, which is the
case here—so the need for a fixed deadline is some-
what less because most of the evidence is likely (though
not in this case) to concern the present rather than the
past and thus be fresh rather than stale. A rigid deadline
would, moreover, have been inconsistent with the dis-
cretionary character of the equity jurisdiction and the
chancellor’s historic function of doing justice when
courts of law were bound by rigid rules, of which
statutes of limitations (before the modern emergence
of discovery rules and tolling doctrines) were good exam-
ples. Laches fitted nicely with such long-established
equitable maxims as “he who seeks equity must do
equity” and “equity aids the vigilant, not those who sleep
No. 09-3345 9
on their rights.” See Kathryn E. Fort, “The New Laches:
Creating Title Where None Existed,” 16 Geo. Mason L. Rev.
357, 364-69 (2009); Eric Fetter, Note, “Laches at Law in
Tennessee,” 28 U. Memphis L. Rev. 211, 213-17 (1997).
Well, “equitable” is in the caption and in the body of
section 6015(f). And we’ve found cases in which laches
was invoked to bar a taxpayer’s claim. United States v.
Matheson, 532 F.2d 809, 820-21 (2d Cir. 1976); Southern
Pacific Transportation Co. v. Commissioner, 75 T.C. 497, 840-
42 (Tax Ct. 1980); see also Boris I. Bittker & Lawrence
Lokken, Federal Taxation of Income, Estates and Gifts ¶ 115.7
(2010). (In contrast, the government probably isn’t
barred by its own laches in suits to collect taxes, Hatchett
v. United States, 330 F.3d 875, 887 (6th Cir. 2003); cf.
United States v. Brockamp, 519 U.S. 347 (1997); RHI
Holdings, Inc. v. United States, 142 F.3d 1459, 1461-
63 (Fed. Cir. 1998), though that is an open question in
this court. United States v. Administrative Enterprises, Inc.,
46 F.3d 670, 672-73 (7th Cir. 1995).)
But neither party suggests that laches might be
an adequate substitute for a fixed deadline, and there
is a compelling reason why it would not be. Had the
Treasury decided to impose no deadline on the filing
of claims under subsection (f), or even just a deadline
longer than two years, or in lieu of a fixed deadline
the flexible deadline of the laches doctrine, it would
have been undermining the two-year deadline fixed by
Congress in subsections (b) and (c). For remember that
a condition of relief under (f) is that the claimant be
ineligible for relief under either of the other subsections.
10 No. 09-3345
Subsection (b) grants relief to a joint filer of a return that
is found to understate the joint-filers’ liability, if “in
signing the return he or she did not know, and had
no reason to know, that there was [an] understatement;
[and] taking into account all the facts and circumstances,
it is inequitable to hold [him or her] liable for the defi-
ciency in tax . . . attributable to such understatement.”
26 U.S.C. §§ 6015(b)(1)(C), (D). Were it not for the Trea-
sury’s imposed deadline, Lantz would almost certainly
be eligible for innocent-spouse relief under subsection (b)
as well as under (f). The substantive criterion for re-
lief under (f)—“taking into account all the facts and
circumstances, it is inequitable to hold the individual
liable for any unpaid tax or any deficiency”—is also a
criterion for relief under (b). And although an addi-
tional criterion specified in (b) but not in (f) is that the
applicant not have known or have had reason to know
of the understatement, it is an important factor in deter-
mining the applicant’s equitable claim under (f) as well,
though exceptions are allowed. IRS Rev. Proc. 2003-61,
§§ 4.02(1)(b), 4.03(2)(a)(iii); Greer v. Commissioner, 595 F.3d
338, 352 (6th Cir. 2010); Commissioner v. Neal, 557 F.3d 1262,
1276-78 (11th Cir. 2009); Washington v. Commissioner, 120
T.C. 137, 150-51 (Tax Ct. 2003). An applicant who
manages to satisfy both criteria in subsection (b) is thus
bound to satisfy the criterion in (f). So, on the Tax Court’s
view, the two-year deadline imposed by subsection (b)
drops away; anyone eligible for relief under (b) is eligible
for relief under (f) no matter when she applies.
It’s also likely that had Lantz not missed the two-year
deadline in subsection (c) she would have been eligible
No. 09-3345 11
for innocent-spouse relief under that subsection as well. It
provides relief to a joint-filing spouse who at the time
of applying for it either is no longer married to the
person with whom she filed the joint return or is legally
separated from him or has not been living with him for
at least 12 months. Lantz’s husband died before she
filed for relief, and a widow filing for relief is eligible
under subsection (c). 26 C.F.R. § 1.6015-3(a). (And she
hadn’t been living with him for the previous three years
and was about to divorce him when he died.) She
probably meets the substantive eligibility conditions
under subsection (c) as well—that the spouse claiming
relief have had no actual knowledge of the understate-
ment of tax liability and not have received assets that
her spouse had given her to avoid taxes or with some
other fraudulent motive. 26 U.S.C. §§ 6015(c)(3)(A)(ii),
(C), (4).
In short, if there is no deadline in subsection (f), the two-
year deadlines in subsections (b) and (c) will be set
largely at naught because the substantive criteria of
those sections are virtually the same as those of (f).
Subsection (f), in contrast to (b) and particularly (c), is
brief, probably because it’s a safety-valve provision for
innocent spouses who fall through cracks in (b) or (c).
The details of the safety valve were left to the Treasury
Department to work out and an important detail—the
deadline for application—was created by the Treasury
regulation that the Tax Court has invalidated. It’s as
if Illinois passed a statute authorizing the issuance of
drivers’ licenses containing the licensee’s Zodiacal sign
12 No. 09-3345
but specifying no deadline for applications, and the
Driver Services Department, which is responsible for
issuing licenses, promulgated a regulation requiring that
applications for the special license be filed one month
before the expiration of the driver’s current license. Would
anyone say that the state legislature had by its “audible
silence” forbidden the Department to impose such a
deadline?
Moreover, subsection (f) does not require the IRS to
grant relief even to an applicant who fully satisfies the
criteria set out in the subsection; for it states that if those
criteria are satisfied the Service “may relieve such individ-
ual of such [joint-filer] liability” (emphasis added). Since
the government can refuse to grant equitable relief to
someone who meets the statutory criteria and applies
within two years of the first collection action, why can’t
it decide to deny relief to a class of applicants defined
as those who waited too long? Cf. Lopez v. Davis, 531
U.S. 230, 238, 243 (2001), where the Supreme Court
rejected the argument that the Bureau of Prisons
“must not make categorical exclusions, but may rely
only on case-by-case assessments.” The power to make
such exclusions is implicit in the grant of rulemaking
authority to an agency and insistence on “case-by-case
decisionmaking in thousands of cases each year . . . could
invite favoritism, disunity, and inconsistency.” Id. at 244.
Since subsection (f) requires the Treasury to devise
the appropriate substantive standards (as well as the
relevant procedures) for the grant of equitable relief, one
would expect Congress to leave it up to the Treasury
to establish deadlines optimized to the substantive
No. 09-3345 13
criteria, as different criteria could require different
lengths of time to satisfy.
We must also not overlook the introductory phrase
in subsection (f)—“under procedures prescribed by the
[Treasury Department]”—or the further delegation in
26 U.S.C. § 6015(h) to the Treasury to “prescribe such
regulations as are necessary to carry out the provisions
of” section 6015. In related contexts such a delegation
has been held to authorize an agency to establish dead-
lines for applications for discretionary relief. Johnson v.
Gonzales, supra, 478 F.3d at 799; Swallows Holding, Ltd. v.
Commissioner, supra, 515 F.3d at 170-72; see also Foroglou
v. Reno, supra, 241 F.3d at 113; cf. Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, Inc., 435
U.S. 519, 543 (1978). Congress’s authorizing an agency
to grant discretionary relief under procedures that the
agency is to devise itself, as distinct from telling the
agency when it must grant relief, writes the agency a
blank check; and one of the blanks on the check is
the deadline for applying for such relief.
True, subsection (b) contains the same introductory
language as (f)—“under procedures prescribed by the
[Treasury Department]” (emphasis added)—yet goes on
to fix a two-year limit; and so Lantz argues that deadlines
must not be “procedural.” But (b) is captioned “procedures
for relief from liability applicable to all joint filers” (em-
phasis added), and one of the procedures is the two-year
deadline. We mustn’t take the caption literally, since
subsection (b) contains substantive criteria, such as
the applicant’s knowledge of the understatement or
14 No. 09-3345
underpayment. But the caption implies that at least some
of the criteria are procedural in character—Congress
specified some of the procedures and left others to
be created by the Treasury.
We further note that while subsections (b) and (c)
are limited to understatements of liability, (f) includes
underpayments as well. Cases in which tax liability is
acknowledged but the taxpayer simply fails to pay it in
full are legion (understatements are common too, but
of course often never discovered), and we doubt that
Congress would want to preclude the Treasury from
imposing a deadline designed to reduce the flow to
manageable proportions.
Lantz points out that the circumstances bearing on
the equities of a claim for equitable relief may change
over the course of the ten years in which the IRS may
be trying to collect unpaid taxes. Maybe when the IRS
makes its first effort to collect them the innocent
spouse is wealthy, and so while innocent doesn’t have
a compelling equitable claim for relief, but that later,
with the IRS doggedly persisting in its collection efforts,
she is in poverty but past the two-year deadline for
seeking innocent-spouse relief. But this argument is
really a quarrel with Congress, because it is equally an
argument against the two-year statutory deadline in
subsection (b). The guilty spouse may have understated
his income on the joint return and the innocent spouse
may not have sought (or, if she did seek, may not have
obtained) relief under (b) because she was wealthy, but
five years later she is poor but no longer eligible because
No. 09-3345 15
of the two-year deadline. So the taxpayer’s argument
reduces to: Congress knew it was fixing an unfair deadline
in subsection (b), so it said to taxpayers (in an “audible
silence”), “don’t worry about the two-year deadline
because after two years you can seek the identical relief
under (f).” That would be an odd way to legislate.
The arguments against the Tax Court’s interpretation
of subsection (f) as barring a fixed deadline may not be
conclusive, though they are powerful. But federal income
taxation is immensely complex, and Congress does not
have the time or the knowledge to formulate comprehen-
sive rules for its administration. It delegates expansive
authority to the Treasury, which promulgates regulations
only after long and painstaking consideration. The delega-
tion in section 6015(f) is express, and the cases are legion
that say that Treasury regulations are entitled to judicial
deference, e.g., Boeing Co. v. United States, 537 U.S. 437, 447-
48 (2003); United States v. Correll, 389 U.S. 299, 307 (1967);
Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501
(1948); Bankers Life & Casualty Co. v. United States, 142 F.3d
973, 979-83 (7th Cir. 1998); In re Hartman Bros. Construction
Corp., 835 F.2d 1215, 1218 n. 3 (7th Cir. 1987)—all the more
so if “issued under a specific grant of authority to define a
statutory term or prescribe a method of executing a
statutory provision.” United States v. Vogel Fertilizer Co., 455
U.S. 16, 24 (1982); see also Bankers Life & Casualty Co. v.
United States, supra, 142 F.3d at 979; Gehl Co. v. Commis-
sioner, 795 F.2d 1324, 1329 (7th Cir. 1986); Armstrong World
Industries, Inc. v. Commissioner, 974 F.2d 422, 430 (3d Cir.
1992). Remember that subsection (f) provides that “under
procedures prescribed by the [Treasury]” an innocent
16 No. 09-3345
spouse may be granted equitable relief under that subsec-
tion, while subsection (h) provides that “the [Treasury]
shall prescribe such regulations as are necessary to carry
out the provisions of [section 6015]” in general.
Our conclusion that Lantz’s claim for equitable relief
was properly rejected is harsh. But it does not leave her
remediless. The Treasury provides avenues of relief
to taxpayers who would experience hardship from con-
tinued pertinacious efforts by the Internal Revenue
Service to collect unpaid taxes from them. Of particular
relevance to Lantz, given her meager pecuniary resources,
section 6343(a)(1)(D) of the Internal Revenue Code autho-
rizes the IRS to “release the levy upon all, or part of, the
property or rights to property [of the taxpayer] levied
upon if . . . [the IRS] has determined that such levy is
creating an economic hardship due to the financial condi-
tion of the taxpayer.” And the levy must be released if
it “is creating an economic hardship due to the financial
condition of an individual taxpayer . . . [by causing the
taxpayer] to be unable to pay his or her reasonable basic
living expenses.” 26 C.F.R. § 301.6343-1(b)(4). See also
Vinatieri v. Commissioner, 133 T.C. No. 16, 2009 WL 4980692,
at *5-6 (Tax Ct. Dec. 21, 2009). The Service thus can or,
depending on circumstances, must declare the taxes
“currently not collectible” and stop levying on a tax-
payer’s meager property, though it reserves the right to
renew collection efforts should the taxpayer experience
a windfall (“winning the lottery” is the conventional
example). Internal Revenue Manual § 5.16.1.2.9(10) (May 5,
2009), www.irs.gov/irm/part5/irm_05-016-001.html (visited
May 8, 2010). Ironically, the Service declared the taxes
No. 09-3345 17
owed by Lantz’s husband—the crooked dentist—“cur-
rently not collectible.” She is entitled a fortiori to such
relief, and there is no deadline for seeking it. We
can at least hope that the IRS knows better than to try
to squeeze water out of a stone.
R EVERSED AND R EMANDED.
6-8-10