NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2010*
Decided December 23, 2010
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐2776
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:05‐cv‐04152‐JPG‐DGW
HERMAN A. WESSELMAN, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
The government sued Herman Wesselman under
26 U.S.C. § 7403 to reduce to
money judgment unpaid assessments for tax, penalties, and interest; and to foreclose on tax
liens. The district court granted summary judgment for the government, and Wesselman
appeals. We affirm.
For years, Wesselman did not file tax returns for himself or his roofing business. The
Internal Revenue Service caught up with him and in 1993 began an audit of Wesselman and
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 10‐2776 Page 2
his business. After Wesselman refused the IRS’s requests for documents needed to
determine his tax liability, the IRS reconstructed his income, calculated his tax liability, and
assessed taxes due for an eight‐year period for Wesselman and a three‐year period for his
business. The IRS assessed over $1.7 million in unpaid taxes, interest, and penalties against
Wesselman, provided him notice of the assessment, and demanded payment. See
26 U.S.C.
§ 6303(a). But pay he did not. If a taxpayer does not pay an assessed tax liability after
receiving notice of assessment and demand for payment, a lien for the unpaid taxes attaches
on all property belonging to the taxpayer. See
id. §§ 6321, 6322. Once the liens arose in this
case, the government recorded them on two properties it believed Wesselman controlled.
See id. §§ 6321, 6322.
The government then sued Wesselman for a money judgment and to foreclose on the
tax liens. See
26 U.S.C. § 7403. The first count of the government’s complaint sought to
reduce to judgment Wesselman’s unpaid assessments for tax, penalties, and interest. The
district court granted summary judgment for the government on this count in the amount of
$1,769,148.31. United States v. Wesselman, No. 05‐cv‐4152‐JPG,
2007 WL 4232711 (S.D. Ill.
Nov. 29, 2007). The district court also found that there was no just reason to delay
enforcement of this judgment and certified it for immediate appeal under Federal Rule of
Civil Procedure 54(b). United States v. Wesselman, No. 05‐4152,
2008 WL 3093381 (S.D. Ill.
Aug. 5, 2008). Wesselman did not appeal this order.
The government then proceeded on its second count to foreclose on the liens
attaching to the two properties. The government contended that Wesselman controlled
these properties through nominees to whom he had given legal title. See
26 U.S.C. § 7403.
The lien that arises after a taxpayer fails to pay an assessed tax liability attaches not only to
property belonging to the taxpayer, but also to property held by the taxpayer’s
nominees—someone who has legal title when, in substance, the taxpayer enjoys the benefits
of ownership. G. M. Leasing Corp. v. United States,
429 U.S. 338, 350‐51 (1977); United States v.
Swan,
467 F.3d 655, 658 (7th Cir. 2006); Macklin v. United States,
300 F.3d 814, 818 n.2 (7th Cir.
2002). The government produced evidence that the trustees holding legal title to two
properties were, in fact, Wesselman’s nominees, that liens had attached to the trust
properties, and that lien foreclosure was warranted. The district court agreed and granted
summary judgment for the government on its second count. United States v. Wesselman, No.
05‐cv‐4152‐JPG,
2010 WL 1654899 (S.D. Ill. Apr. 22, 2010).
Wesselman filed a notice of appeal from the district court’s second grant of summary
judgment. Yet in his brief on appeal he attacks only the validity of the IRS’s assessment of
his tax liability. That issue was decided back when the court granted summary judgment
on the government’s first count. And, in August 2008, the district court certified that
judgment on his tax liability for immediate appeal under Federal Rule of Civil Procedure
No. 10‐2776 Page 3
54(b). The 60‐day time limit for appealing the tax liability began to run from the date of
entry of the Rule 54(b) order. Sears, Roebuck & Co. v. Mackey,
351 U.S. 427, 435‐36 (1956);
Beugler v. Burlington N. & Santa Fe Ry. Co.,
490 F.3d 1224, 1227 n.1 (10th Cir. 2007); Phillips v.
Heine,
984 F.2d 489, 490 (D.C. Cir. 1993); Willhauck v. Halpin,
919 F.2d 788, 794 (1st Cir. 1990);
10 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2654
(3d ed. 1998). But Wesselman filed his notice of appeal almost two years later, well‐after 60
days from that order. Accordingly, the validity of the tax assessment is outside the scope of
our review.
With the validity of the tax assessment beyond review, the only issue on appeal is
the propriety of foreclosing on the two properties legally held by Wesselman’s nominees.
But Wesselman has presented no arguments disputing the government’s evidence or the
propriety of foreclosure. He has thus waived any opposition to that remedy.
See, e.g., United States v. Parker,
609 F.3d 891, 896 (7th Cir. 2010). Instead, he contends that
his income is not subject to federal tax because, he claims, only federal employees are
subject to federal income tax. See
26 U.S.C. §§ 3401(c), 7343. But this argument disputes his
tax liability, not the foreclosure remedy, and anyway has been rejected as “preposterous.”
United States v. Latham,
754 F.2d 747, 750 (7th Cir. 1985); see United States v. Beale,
574 F.3d
512, 518 n.3 (8th Cir. 2009); Parker v. Comm’r,
724 F.2d 469, 471‐72 (5th Cir. 1984). He also
asserts that the IRS’s assessments were invalid because the IRS did not produce a sworn
Form 23C documenting the assessments. Again, this argument opposes only the assessment
itself. But in any case, as the IRS did here, the IRS may submit Certificates of Assessments
and Payments on Form 4340, which details the assessments, and these Form 4340s are
presumptive proof of a valid assessment. March v. Internal Revenue Serv.,
335 F.3d 1186,
1187‐88 (10th Cir. 2003); Roberts v. Comm’r.,
329 F.3d 1224, 1228 (11th Cir. 2003); Geiselman v.
United States,
961 F.2d 1, 5‐6 (1st Cir. 1992). Finally, Wesselman appears to contend that the
government should have accepted as payment a money order from him. But the alleged
tender is not in the record, and we therefore may not consider it.
AFFIRMED.
