Maze v. Internal Revenue Service ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2017 Decided July 14, 2017
No. 16-5265
EVA MAZE, ET AL.,
APPELLANTS
v.
INTERNAL REVENUE SERVICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01806)
George M. Clarke III argued the cause for appellants.
With him on the briefs was Joseph B. Judkins. Allison M. De
Tal and Vivek A. Patel entered appearances.
Andrew M. Weiner, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Gilbert S. Rothenberg and Teresa E. McLaughlin, Attorneys.
Before: HENDERSON, GRIFFITH and SRINIVASAN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge:
“No taxes can be devised which are not more or less
inconvenient and unpleasant.”
-George Washington1
Eva Maze, Suzanne Batra, Margot Lichtenstein, Marie
Green, May Muench, Kevin Muench, Nancy Blumenkrantz
and Harold Blumenkrantz (“plaintiffs”) are taxpayers who
failed to report—and pay tax on—foreign income. In 2012, the
plaintiffs enrolled in a voluntary Internal Revenue Service
(“IRS”) disclosure program that allowed them to become tax
code compliant on relatively favorable terms. In 2014,
however, the plaintiffs wanted to change course; they sought
enrollment in a new IRS disclosure program with a different
tax treatment. The IRS rejected the plaintiffs’ request and they
then brought suit. For the reasons that follow, we conclude that
the district court was without jurisdiction to resolve their
claims in light of the jurisdiction-stripping provision contained
in the Anti-Injunction Act (“AIA”), 26 U.S.C. §§ 7421 et seq.,
and therefore affirm.
I. BACKGROUND
The IRS has periodically offered programs designed “to
settle with taxpayers who ha[ve] failed to report offshore
income and file any related information return . . . .” 1 NAT’L
TAXPAYER ADVOCATE, 2012 ANNUAL REPORT TO CONGRESS
134 (2012). In 2012, for example, the IRS announced an
Offshore Voluntary Disclosure Program (“2012 OVDP”). See
JA 43. Generally, the 2012 OVDP enables a taxpayer with
1
THE QUOTABLE GEORGE WASHINGTON 93 (Stephan E. Lucas
ed., Madison House Publishers 1999) (Farewell Address,
Philadelphia, September 19, 1796).
3
undisclosed foreign income or assets to be relieved of liability
based on his past noncompliance with reporting/payment of
taxes. Once enrolled in the 2012 OVDP, a taxpayer can settle
most potential penalties for which he may be liable—with the
exception of accuracy-based penalties under 26 U.S.C. §
6662(a)—through a lump sum compromise equaling 27.5% of
the aggregate value of his foreign assets. Moreover, a 2012
OVDP participant can sign a closing agreement, which
constitutes a final settlement on previously unreported foreign
assets. But the 2012 OVDP benefits flow to a participant only
if he meets a number of stringent payment and filing
requirements. One of the requirements is relevant here—the
requirement that a 2012 OVDP participant must pay eight
years’ worth of accuracy-based penalties, see 26 U.S.C. §
6662(a), as a condition of enrollment.
Two years after the implementation of the 2012 OVDP,
the IRS introduced the expanded Streamlined Procedures
program. See JA 70-73. Compared to the 2012 OVDP, the
Streamlined Procedures offer fewer benefits to a noncompliant
taxpayer—for example, the Streamlined Procedures
participant’s tax filings and payments serve to excuse all
penalties not involving willfulness for a three year period.2
Importantly, the Streamlined Procedures reduced benefits are
counterbalanced by fewer compliance requirements; as
relevant here, the Streamlined Procedures participant need not
pay any accuracy-based penalty.3
2
The Streamlined Procedures participant, however, does not
receive any assurance regarding future criminal prosecution.
3
The Streamlined Procedures participant is nonetheless
required to pay an offshore penalty equivalent to 5% of the value of
his foreign assets. See I.R.S. News Release IR-2014-73 (June 18,
2014).
4
Shortly after the expansion of the Streamlined Procedures,
the IRS also established a system—known as the “Transition
Rules”—to “allow taxpayers currently participating in OVDP
who meet the eligibility requirements for the expanded
Streamlined Filing Compliance Procedures . . . an opportunity
to remain in the OVDP while taking advantage of the favorable
penalty structure of the expanded streamlined procedures.” JA
102. Stated generally, the Transition Rules allowed a 2012
OVDP participant to receive tax treatment similar (but not
identical) to that offered to a Streamlined Procedures
participant. For example, under the Transition Rules, a 2012
OVDP participant’s offshore penalty is reduced from 27.5% to
5%, a change that makes his outstanding liability much closer
to what it would have been had he enrolled in the Streamlined
Procedures in the first instance. The Transition Rules,
however, leave some requirements untouched. Unlike the
Streamlined Procedures participant, a 2012 OVDP participant
who takes advantage of the Transition Rules must still pay
eight years’ worth of accuracy-based penalties. And a 2012
OVDP participant cannot leave that program and apply for the
Streamlined Procedures; the Transition Rules are his only
means of receiving somewhat comparable treatment.
As noted, the plaintiffs are noncompliant taxpayers who
enrolled in the 2012 OVDP. Beginning in 2014, however, they
tried to withdraw from the 2012 OVDP and apply for the
Streamlined Procedures. The IRS denied their requests and
directed them to apply for comparable treatment under the
Transition Rules. Instead, the plaintiffs brought suit, seeking
“(1) judgments that the ‘Transition Rules’ were unlawful under
the Administrative Procedure Act, (2) an injunction allowing
Plaintiffs to transfer from one IRS voluntary program to
another, contrary to the IRS’s existing rules prohibiting such a
transfer; and (3) an injunction prohibiting the enforcement of
the ‘Transition Rules.’” Maze v. IRS, 206 F. Supp. 3d 1, 9
5
(D.D.C. 2016). The district court did not reach the merits of
their complaint, however; instead, it concluded that it lacked
jurisdiction under the AIA and the tax exception of the
Declaratory Judgment Act4 and dismissed their complaint. Id.
at 21. The plaintiffs now appeal.
II. ANALYSIS
The AIA provides that “no suit for the purpose of
restraining the assessment or collection of any tax shall be
maintained in any court by any person . . . .” 26 U.S.C.
§ 7421(a). “The manifest purpose of § 7421(a) is to permit the
United States to assess and collect taxes alleged to be due
without judicial intervention, and to require that the legal right
to the disputed sums be determined in a suit for refund.”
Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7
(1962). The AIA ensures “protection of the Government’s need
to assess and collect taxes as expeditiously as possible with a
minimum of preenforcement judicial interference . . . .” Bob
Jones Univ. v. Simon, 416 U.S. 725, 736 (1974). Indeed, we
have previously expressed “appropriate concern about the . . .
danger that a multitude of spurious suits, or even suits with
possible merit, would so interrupt the free flow of revenues as
to jeopardize the Nation’s fiscal stability.” Cohen v. United
States, 650 F.3d 717, 724 (D.C. Cir. 2011) (en banc) (internal
quotation marks omitted) (quoting Alexander v. “Americans
United” Inc., 416 U.S. 752, 769 (1974) (Blackmun, J.,
dissenting)). Thus, because the AIA bars “those suits seeking
to restrain the assessment or collection of taxes,” we must
4
As the district court noted, the Declaratory Judgment Act is
“coterminous” with the AIA, meaning that the AIA decides this case.
Maze v. IRS, 206 F. Supp. 3d 1, 10-11 (D.D.C. 2016). Thus, as we
did in Florida Bankers Ass’n v. U.S. Dep’t of Treasury, “we will refer
only to the Anti-Injunction Act.” 799 F.3d 1065, 1068 (D.C. Cir.
2015).
6
engage in “a careful inquiry into the remedy sought, the
statutory basis for that remedy, and any implication the remedy
may have on assessment and collection.” Id. at 724, 727. A
claim that comes within the AIA’s scope must be dismissed for
lack of subject matter jurisdiction. Gardner v. United States,
211 F.3d 1305, 1311 (D.C. Cir. 2000).
The parties agree that the case turns—in large part—on
how the Court interprets “restraining” as used in the AIA. See
26 U.S.C. § 7421(a) (“[N]o suit for the purpose of restraining
the assessment or collection of any tax shall be maintained in
any court by any person . . . .” (emphasis added)); see also
Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124, 1132-33 (2015)
(interpretation of “restrain” under Tax Injunction Act, 28
U.S.C. § 1341). The plaintiffs insist that “restraining,” as used
in the AIA, should be interpreted narrowly; that is, to refer
solely to an action that seeks to completely stop the IRS from
assessing or collecting a tax. See Appellants’ Br. 19-34.
Because the plaintiffs believe their lawsuit does not prevent the
assessment or collection of any tax, they argue the AIA does
not oust the court of jurisdiction. The IRS disagrees. It argues
that “restraining” not only includes litigation that completely
stops the assessment or collection of a tax but also encompasses
a lawsuit that inhibits the same. See Appellee’s Br. 33-57.
Under this broad interpretation, the IRS insists that the
plaintiffs’ lawsuit plainly seeks to hinder its ability to collect
the 2012 OVDP taxes they owe.
We need not decide today the correct interpretation of
“restraining” as used in the AIA. “In our circuit it is a venerable
practice, and one frequently observed, to assume arguendo the
answer to one question . . . in order to resolve a given case by
answering another and equally dispositive one.” Earle v. D.C.,
707 F.3d 299, 304 (D.C. Cir. 2012) (quoting In re Grand Jury
Subpoena (Judith Miller), 438 F.3d 1141, 1159 (D.C. Cir.
2006) (Henderson, J., concurring)). Here, assuming arguendo
7
that the plaintiffs are correct in their narrow construction of
“restraining” as referring to litigation that stops the collection
of a tax, they still cannot prevail.
As participants in the 2012 OVDP, the plaintiffs are
required to pay eight years’ worth of accuracy-based penalties.
These penalties are treated as taxes under the AIA and any
lawsuit that seeks to restrain their assessment or collection is
therefore barred. 5 See Florida Bankers Ass’n v. U.S. Dep’t of
Treasury, 799 F.3d 1065, 1067 (D.C. Cir. 2015). This lawsuit,
in which the plaintiffs seek to qualify to enroll in the
Streamlined Procedures, does just that; to repeat, the
Streamlined Procedures do not require a participant to pay any
accuracy-based penalties for the three years covered by the
5
“[T]he Tax Code defines some penalties as taxes for purposes
of the Anti-Injunction Act.” Florida Bankers Ass’n, 799 F.3d at
1067. In Florida Bankers, for example, we determined that penalties
set out in Chapter 68, Subchapter B should be “treated as taxes under
the Anti-Injunction Act” because Subchapter B provides that “any
reference in this title to ‘tax’ imposed by this title shall be deemed
also to refer to the penalties and liabilities provided by this
subchapter.” Id. (citing 26 U.S.C. § 6671(a) (emphasis added));
accord Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544-45
(2012) (“Penalties in Subchapter 68B are . . . treated as taxes under
Title 26, which includes the Anti-Injunction Act.”). The accuracy-
based penalties at issue here—a 20% surcharge applied to any
“underpayment of tax required to be shown on a return,” 26 U.S.C.
§ 6662(a)—are included in Chapter 68, Subchapter A of the Internal
Revenue Code. Like Subchapter B, Subchapter A states that “any
reference in this title to ‘tax’ imposed by this title shall be deemed
also to refer to the additions to the tax, additional amounts, and
penalties provided by this chapter.” 26 U.S.C. § 6665(a)(2)
(emphasis added). Accordingly, we believe the Subchapter A
penalties should be “treated as taxes under the Anti-Injunction Act.”
799 F.3d at 1067.
8
program. Thus, their lawsuit would have the effect of
restraining—fully stopping—the IRS from collecting
accuracy-based penalties for which they are currently liable.
We believe this fact alone manifests that the AIA bars their suit.
See 26 U.S.C. § 7421(a).
The plaintiffs’ response is unavailing. First, they insist that
their claim does not fall within the AIA’s scope because they
seek only the ability to apply for the Streamlined Procedures (a
route currently foreclosed by the Transition Rules), not court-
ordered enrollment. Appellants’ Br. 40. They note that their
eligibility to enroll alone, viewed in vacuo, has no immediate
tax consequence. But we have never applied the AIA without
considering the practical impact of our decision. Rather, we
have recognized our need to engage in “a careful inquiry into
the remedy sought . . . and any implication the remedy may
have on assessment and collection.” Cohen, 650 F.3d at 724
(emphasis added). And here, the plaintiffs concede that they
will enroll in the Streamlined Procedures if they are deemed
eligible, see Oral. Arg. Rec. 3:10-3:15, thereby stopping the
IRS from collecting the 2012 OVDP accuracy-based penalties.
The plaintiffs also argue that their eligibility for, or
enrollment in, the Streamlined Procedures would not
necessarily prevent the IRS from collecting the accuracy-based
penalties because they would be liable for all taxes and
penalties if the IRS determined they either acted willfully in
failing to report their overseas assets or failed to comply with
the requirements of the Streamlined Procedures program. But
the fact that their attempt to take advantage of the Streamlined
Procedures’ more lenient tax treatment might be thwarted by
the possibility of an adverse IRS determination does not make
their lawsuit one that is not brought “for the purpose of
restraining the assessment or collection of any tax.” 26 U.S.C.
§ 7421(a).
9
One issue remains. We have previously recognized that the
AIA “does not apply at all where the plaintiff has no other
remedy for its alleged injury.” Z Street v. Koskinen, 791 F.3d
24, 31 (D.C. Cir. 2015). “[T]he Act was intended to apply only
when Congress has provided an alternative avenue for an
aggrieved party to litigate its claims.” Id. at 29 (internal
quotation marks omitted) (quoting South Carolina v. Regan,
465 U.S. 367, 381 (1984)). Here, that requirement is met. As
the district court noted, the plaintiffs can
opt-out of the OVDP, allow the IRS to determine
their liabilities by examination, pay the assessed
liabilities, and file an administrative claim for a
refund for the difference between the liability
determined and the amount that would be due
under the Streamlined Procedures; if that
administrative refund claim is denied, they may
then file a refund suit in federal court.
Maze, 206 F. Supp. 3d at 20. Their ability to initiate a refund
suit—an adequate “alternative avenue,” id. at 19—means that
the AIA applies with full force to their action.6 See Florida
Bankers Ass’n, 799 F.3d at 1067 (“To be clear, our ruling does
not prevent a [party] from obtaining judicial review of the
challenged regulation. A [party] may decline to submit a
required report, pay the penalty, and then sue for a refund. At
that time, a court may consider the legality of the regulation.”).
6
The plaintiffs worry that, in a refund suit, they could challenge
only the amount of their tax liability, not the Transition Rules
themselves. Appellants’ Br. 51. We disagree and note the IRS’s
acknowledgment at oral argument that the plaintiffs may indeed
challenge the Transition Rules in a refund action. See Oral Arg. Rec.
21:19-21:47.
10
For the foregoing reasons, we affirm the district court’s
dismissal.
So ordered.