Hook v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 19, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
M. JULIA HOOK,
Plaintiff - Appellant,
and
No. 15-1022
DAVID L. SMITH, (D.C. No. 1:13-CV-01156-RM-KLM)
(D. Colo.)
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
M. Julia Hook appeals the district court’s dismissal of an action she and her
husband, David L. Smith, brought to challenge their federal income tax liabilities.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
Ms. Hook and Mr. Smith are both attorneys, although the Colorado Supreme
Court has disbarred Mr. Smith, and he is also disbarred from practicing before the
United States District Court for the District of Colorado.1 They have been litigating
their federal income tax liabilities for the last fifteen years in various courts,
including this one.2
In the instant action, plaintiffs sought a credit or refund of nearly $1 million
(plus any future increases in their tax liability due to allegedly improper levies on
Mr. Smith’s social security benefits payments) for payment or overpayment of
federal income taxes, penalties, and interest for tax years 1992-1996 and 2001-2006.
They also requested an abatement of penalties for those tax years; actual damages;
the release of all federal tax liens; the return of all levied or seized property; the
release of continuing levies on Mr. Smith’s social security payments; an order
quieting title to all their real and personal property; interest, costs, and attorney’s
fees; and any other just relief.
The United States moved to dismiss the action for lack of jurisdiction and
failure to state a claim upon which relief can be granted under Rules 12(b)(1) and
1
This court also disbarred Mr. Smith from practice before this court, but we
have since reinstated him. See In re Smith, 500 F. App’x 786, 787 (10th Cir. 2012)
(setting out Mr. Smith’s disbarment history).
2
The district court recounted a number plaintiffs’ litigation efforts regarding
their federal income tax liabilities. See Aplt. App. at 449 n.1. We will not repeat that
history in detail here.
2
12(b)(6) of the Federal Rules of Civil Procedure. Chief District Judge Marcia S.
Krieger granted the motion with leave to file an amended complaint to cure various
pleading deficiencies, including the failure to sufficiently allege plaintiffs had fully
paid or overpaid their taxes for any of the tax years at issue and the failure to identify
when returns were actually filed or when assessments were made.
Plaintiffs filed a verified amended complaint, setting forth a detailed summary
of their income tax liabilities, as determined by the Tax Court, for all the tax years in
question except 2006,3 and their payments, which were made through IRS levies or
by Ms. Hook, under protest, pursuant to Bankruptcy Court orders or plans. Their
summary was qualified by a statement that they did “not concede that they owe[d]
either the original tax liabilities or the Additions to Tax for the years 1992-1996 and
2001-2005” on the ground that “the opinions and judgments of the Tax Court for
[those] years were null and void ab initio because of constitutional and statutory due
process violations.” Aplt. App. at 36 n.1. Hence, in addition to the relief they
requested in their original complaint, Plaintiffs sought
a declaration that the orders, opinions and judgments of the United States
Tax Court, the United States Bankruptcy Court for the District of Colorado,
and the United States Court of Federal Claims were null and void ab
initio because of numerous violations of Smith’s and Hook’s constitutional
and statutory rights to due process of law[.]
3
Apparently, plaintiffs did not take issue with the amount of their 2006 tax
liability, but they claimed it had already been paid due to prior, alleged
overpayments.
3
Id. at 90. Plaintiffs also outlined their efforts to exhaust administrative remedies
regarding the release of IRS liens and to obtain a refund of, or credit for, their alleged
overpayment. And they added a request for a release of the continuing levies on
Ms. Hook’s social security benefits payments.
After plaintiffs filed their amended complaint, Chief Judge Krieger recused
herself because she was part of the district court’s Committee on Conduct that was
considering Mr. Smith’s application for readmission to the district court’s bar.
Plaintiffs’ case was eventually reassigned to Judge Raymond P. Moore.
The United States filed another Rule 12(b) motion to dismiss for lack of
jurisdiction and failure to state a claim. A magistrate judge recommended that the motion
be granted and the amended complaint dismissed without prejudice. Plaintiffs objected
to the recommendation, but the district court overruled the objections and granted the
motion. Among other things, the court agreed with the government that plaintiffs’
accounting of their tax liabilities and payments was faulty because it omitted penalties
and interest, as set out in declarations attached to the government’s first and second
motions to dismiss. The court noted that although the government had conceded that
plaintiffs had paid their tax liabilities for tax years 1992-1994, they had not overpaid for
those years, and they still owed a considerable amount for tax years 1995-1996 and
2001-2005, as determined by the Tax Court, and for 2006. As to plaintiffs’ specific
claims, the court ruled that
4
(1) 26 U.S.C. § 6512 barred jurisdiction over plaintiffs’ claims contesting their tax
liabilities for tax years 1992-1996 and 2001-2005 because plaintiffs had already
adjudicated those liabilities to a final decision in the Tax Court;
(2) the court lacked subject matter jurisdiction over plaintiffs’ request for a refund
because they had not first paid in full, let alone overpaid, all of their outstanding tax
liabilities, as required by Flora v. United States, 362 U.S. 145, 150-51 (1960), and its
progeny;
(3) plaintiffs’ claims for return and release of levied property (a) failed for lack of
jurisdiction and failure to state a claim because they failed to show the liabilities for
which the levies were made had been satisfied, as required under 26 U.S.C. § 6343(a);
and (b) were barred by the Tax Anti-Injunction Act, 26 U.S.C. § 7421;
(4) plaintiffs failed to state a claim for release of IRS tax liens because they did not
exhaust their administrative remedies; and
(5) plaintiffs’ quiet title claim failed because it was wholly dependent on their
other claims.
Only Ms. Hook has appealed.
DISCUSSION
Because Ms. Hook is an attorney proceeding pro se, we do not afford her
filings the liberal construction ordinarily given to pro se pleadings. See Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). We review de novo the district court’s
Rule 12(b)(1) and 12(b)(6) dismissal of plaintiffs’ amended complaint. See Colo.
5
Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). None of Ms. Hook’s
arguments persuade us that the dismissal was in error.
A. Law of the case
Ms. Hook takes issue with the magistrate judge’s and Judge Moore’s refusal to
follow what she claims was law of the case with regard to subject matter jurisdiction.
Under 28 U.S.C. § 1346(a)(1), the Court of Federal Claims and the district courts
have concurrent jurisdiction over civil actions “against the United States for the
recovery of any internal-revenue tax alleged to have been erroneously or illegally
assessed or collected, or any penalty claimed to have been collected without authority
or any sum alleged to have been excessive or in any manner wrongfully collected
under the internal-revenue laws.” In Chief Judge Krieger’s order dismissing the
original complaint with leave to amend, she stated that “[i]t appears from the
Complaint that the majority of the claims asserted are the type that falls within
[§ 1346(a)(1)].” Aplt. App. at 25. Judge Moore determined that the amended
complaint and the government’s motion to dismiss it set forth substantial new
evidence, and therefore the “new evidence” exception to the law-of-the-case doctrine
applied. See Bishop v. Smith, 760 F.3d 1070, 1082, 1086 (10th Cir.) (stating that a
court’s ruling on a legal issue “should govern the same issues in subsequent stages in
the same case” subject to narrow exceptions, including the emergence of “new
evidence”), cert. denied, 135 S. Ct. 271 (2014).
We conclude that, because Chief Judge Krieger’s jurisdictional ruling was
interlocutory, the law-of-the-case doctrine is not applicable to it, and therefore Judge
6
Moore was not bound by it. “[D]istrict courts generally remain free to reconsider
their earlier interlocutory orders,” and the law-of-the-case-doctrine does not apply “to
rulings revisited prior to entry of a final judgment.” Rimbert v. Eli Lilly & Co.,
647 F.3d 1247, 1251 (10th Cir. 2011) (internal quotation marks omitted). This is so
“even when a case is reassigned from one judge to another in the same court . . . so
long as prejudice does not ensue to the party seeking the benefit of the doctrine.” Id.
“The relevant prejudice is limited to lack of sufficient notice that one judge is
revisiting the decision of a prior judge and the opportunity to be heard with respect to
the new ruling.” Id.
Chief Judge Krieger’s statement regarding § 1346(a)(1) was not only
interlocutory, it was qualified—she concluded that although the original complaint
sufficiently showed a waiver of the United States’ sovereign immunity under that
statute, it did “not end the Court’s jurisdictional inquiry” because the statute “does
not waive any other jurisdictional requirements that are specific to the claims
asserted.” Aplt. App. at 25. Chief Judge Krieger permitted amendment of the
complaint to address alleged jurisdictional defects in plaintiffs’ particular claims.
That is precisely what plaintiffs attempted to do in their amended complaint. After
the case was reassigned to Judge Moore, the government moved to dismiss it for lack
of jurisdiction, thereby giving Ms. Hook sufficient notice that Judge Moore would be
revisiting the issue and an opportunity to be heard on that issue. Accordingly, the
law-of-the-case doctrine did not foreclose the magistrate judge or Judge Moore from
7
analyzing whether § 1346(a)(1) provided the court with subject matter jurisdiction
over the claims asserted in the amended complaint.
B. The Tibbs declaration
In support of its motion to dismiss the amended complaint, the government
submitted the declaration of an IRS Insolvency Advisor, Yvonne M. Tibbs.
Ms. Tibbs summarized plaintiffs’ lengthy litigation history regarding their tax
liabilities, compared the accounting in their amended complaint with IRS records,
and stated that although plaintiffs had paid $662,476.45, they jointly and severally
still owed over $700,000 each. Attached to Ms. Tibbs’s declaration were printouts
from the IRS’s Integrated Data Retrieval System that summarized plaintiffs’
liabilities and payments.
Ms. Hook contends that, because the court refused to exclude Ms. Tibbs’s
declaration, it should have converted the government’s Rule 12(b) motion to dismiss
into a Rule 56 motion for summary judgment, which would have required the court to
give the parties “a reasonable opportunity to present all the material . . . pertinent to
the motion,” Fed. R. Civ. P. 12(d). This argument is devoid of merit. As the district
court explained, the government attacked the factual basis of the court’s subject
matter jurisdiction, and in that scenario, courts enjoy “wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts” without converting the Rule 12(b)(1) motion into a Rule 56
motion. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001)
(internal quotation marks omitted).
8
Nor is there any merit in Ms. Hook’s related argument that the court erred in
denying discovery. The district court pointed to the magistrate judge’s findings that
the parties had already submitted a large volume of exhibits and that “Plaintiffs failed
to identify any specific discovery necessary to the determination of the merits of
Defendant’s jurisdictional arguments.” Aplt. App. at 458. On appeal, Ms. Hook
points to discovery requests she would have submitted if allowed to do so, but the
requests broadly sought all documents and electronically stored information that the
government would rely on to defend the action. She appears to argue that the
government should have been required to produce all the documentation underlying
the summaries attached to the Tibbs declaration. But Ms. Hook offers no specific
challenge to the accuracy of the summaries other than to point to competing
statements in the amended complaint, which, as we will soon discuss, were
insufficient to forestall dismissal. In sum, we see no abuse of discretion in the
district court’s refusal to grant discovery before ruling on the motion to dismiss the
amended complaint. See Garcia v. Tyson Foods, Inc., 770 F.3d 1300, 1309 (10th Cir.
2014) (“We review the district court’s discovery decisions for abuse of discretion and
will reverse only if [the complaining party] makes a clear showing that the denial of
discovery resulted in actual and substantial prejudice.” (footnote and internal
quotation marks omitted)).
C. Claims under 26 U.S.C. §§ 6512, 6343
Ms. Hook takes issue with the district court’s conclusion that 26 U.S.C.
§ 6512(a) precluded plaintiffs from contesting the Tax Court’s determination of their
9
liabilities for tax years 1992-1996 and 2001-2005.4 “Under [§ 6512(a)], filing a
petition to the Tax Court to challenge an asserted deficiency bars the taxpayer from
bringing a suit in any other court for the recovery of any part of the tax for that
taxable year.” Koss v. United States, 69 F.3d 705, 708 (3d Cir. 1995).5 Ms. Hook’s
sole argument is that the Tax Court proceedings were constitutionally flawed and the
government failed to meet its burden of proof in those cases. But neither of these
circumstances are among the six exceptions to the statutory bar enumerated in
§ 6512(a).6
4
Two Tax Court determinations are involved, both of which we affirmed.
See Smith v. Comm’r, 100 T.C.M. 381 (2010), aff’d, 458 F. App’x 714
(10th Cir. 2012); Smith v. Comm’r, 86 T.C.M. 362 (2003), aff’d sub nom.
Hook v. Comm’r, 103 F. App’x 661 (10th Cir. 2004).
5
In relevant part, § 6512(a) provides:
Effect of petition to Tax Court.—If the Secretary has mailed to the
taxpayer a notice of deficiency under section 6212(a) (relating to
deficiencies of income, estate, gift, and certain excise taxes) and if the
taxpayer files a petition with the Tax Court within the time prescribed in
section 6213(a) . . . , no credit or refund of income tax for the same taxable
year . . . in respect of which the Secretary has determined the deficiency
shall be allowed or made and no suit by the taxpayer for the recovery of any
part of the tax shall be instituted in any court . . . .
6
Because the district court lacked jurisdiction over the claim contesting their
tax liabilities for 1992-1996 and 2001-2005, we have no occasion to reach
Ms. Hook’s rather conclusory arguments that the Tax Court’s judgments are void for
lack of jurisdiction and due process violations, or because the government
perpetrated a fraud on that court. Nor must we consider her argument that the district
court erred in declining to sort out the merits of her contention that she was entitled
to a credit or offset in the full amount of the appraised value (approximately
$580,000) of two pieces of real property she released to the IRS when she defaulted
on her Chapter 11 bankruptcy plan rather than the actual net proceeds to the IRS,
(continued)
10
Ms. Hook also asserts that, for purposes of her refund claim, the amended
complaint complied with the “full payment rule” because it showed that plaintiffs had
overpaid their tax liabilities for all the tax years at issue. See 26 U.S.C. § 6512(a)(2)
(creating an exception to the general prohibition on proceeding outside of the Tax
Court for “any amount collected in excess of an amount computed in accordance with
the decision of the Tax Court which has become final”); Magnone v. United States,
902 F.2d 192, 193 (2d Cir. 1990) (per curiam) (stating that “the full payment rule
requires as a prerequisite for federal court jurisdiction over a tax refund suit, that the
taxpayer make full payment of the assessment, including penalties and interest”)
(citing Flora v. United States, 357 U.S. 63 (1958), aff’d on reh’g, 362 U.S. 145
(1960)). But her contention that the amended complaint shows all amounts were
paid, including interest and penalties, is conclusory. And she fails to identify any
error in the district court’s determination that Ms. Tibbs’s declaration and supporting
exhibits established that the accounting in the amended complaint was faulty in
omitting substantial statutory interest and penalties, both of which are treated as taxes
under the Internal Revenue Code. See 26 U.S.C. § 6601(e)(1) (interest is treated “in
same manner as taxes” for assessment and collection purposes); id. § 6671 (same
with respect to penalties); Magnone, 902 F.2d at 193 (same with respect to interest
and penalties); Engh v. United States, 658 F. Supp. 698, 701 (N.D. Ill. 1987) (interest
is part of the amount “‘computed in accordance with’” a final Tax Court decision for
which were substantially less than the appraised value and allegedly below market
value. See Hook v. IRS (In re Hook), 469 B.R. 62, 66-67 (D. Colo. 2011).
11
§ 6512(a)(2) purposes (internal quotation marks omitted)). Because Ms. Hook does
not explain how the amended complaint accounts for interest and penalties (and it is
not obvious from the amended complaint, which lists only the original tax liabilities
as determined by the Tax Court), we reject the notion that there was a material
jurisdictional-fact issue in dispute with regard to the refund claim.
Further, the fact that plaintiffs failed to show that the tax liabilities were paid
forecloses Ms. Hook’s challenge to the district court dismissal of the claim for
release of levies and return of levied property. The district court correctly held that
plaintiffs failed to meet the relevant requirement for a successful release-of-levy
claim—satisfaction of the underlying liability. See 26 U.S.C. § 6343(a)(1)(A)
(stating that the government shall release a levy “if . . . the liability for which such
levy was made is satisfied or becomes unenforceable by reason of lapse of time”).7
7
The court alternatively ruled that the levy-release claim was barred by the
Tax Anti-Injunction Act (TAIA), 26 U.S.C. § 7421(a). Ms. Hook does not directly
challenge that ruling but takes issue with the court’s statement (made in deciding that
a judicial exception to the TAIA did not apply) that “the harm of which Plaintiffs
complain – the loss of income – appears to be self-inflicted as it results from
Plaintiffs’ failure to pay their tax liabilities, liabilities which they have repeatedly
challenged and lost and for which they have not shown have been overpaid.” Aplt.
App. at 463-64. Ms. Hook claims the statement shows that the court “pre-judged the
merits of Plaintiffs’ claims” and calls into question Judge Moore’s fairness and
impartiality. Aplt. Opening Br. at 30. This allegation of bias is untenable and
borders on frivolous. Judge Moore made the comment in applying this circuit’s
precedent that self-inflicted harm does not satisfy the irreparable-harm prong of the
TAIA exception that was at issue. Nothing in the record or Ms. Hook’s appellate
briefs suggests that Judge Moore’s comment derived from an extrajudicial source or
evidenced “such a high degree of favoritism or antagonism as to make fair judgment
impossible.” United States v. Nickl, 427 F.3d 1286, 1298-99 (10th Cir. 2005)
(internal quotation marks omitted).
12
D. Dismissal of quiet title claim
Ms. Hook questions whether it was proper for the district court to dismiss the
quiet title claim on the ground that it was dependent on the other claims that were
dismissed for lack of jurisdiction or failure to state a claim. The quiet title claim was
brought under 28 U.S.C. § 2410, and she argues that it requires different elements of
proof than the claims brought under various provisions of the Internal Revenue Code.
But the plain language of the amended complaint expressly and exclusively based the
quiet title claim on the other claims, which were set out in sections or “paragraphs”
numbered I through VII:
Due to the actions and inactions of the United States described in the
foregoing Paragraphs I–VII, a cloud has been placed on the title to the real
and personal property owned by Smith and/or Hook, who are entitled to
have the title to their real and personal property quieted in accordance with
. . . § 2410.
Aplt. App. at 88. As a matter of law and logic, the quiet title claim was no longer viable
once the court had determined that dismissal of the claims on which it depended (or from
which it arose) was proper. Dismissal of the predicate claims precluded Ms. Hook from
establishing any improper clouds on title resulting from the government’s alleged
wrongdoing. And absent an ability to establish any such improper clouds, the quiet title
claim lacked any supporting allegations, let alone allegations suggesting a “plausible”
claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face[,]” which occurs “when the plaintiff pleads factual
13
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” (internal quotation marks omitted)).
E. Exhaustion of administrative remedies for release of tax liens
Ms. Hook challenges the district court’s conclusion that her claim for damages
under 26 U.S.C. § 7432, based on the IRS’s failure to release tax liens, should be
dismissed under Rule 12(b)(6) because she did not exhaust her administrative
remedies. Section 7432(a) authorizes suits for the failure to release a lien under
26 U.S.C. § 6325, which in turn requires the IRS to release a lien only after the
underlying liabilities have been “fully satisfied” or have become “legally
unenforceable,” § 6325(a)(1). But to bring suit under § 7432(d)(1), a taxpayer must
first exhaust available administrative remedies. To properly exhaust, the taxpayer
must file an administrative claim that provides, among other things, “[t]he dollar
amount of the claim, including any damages that have not yet been incurred but that
are reasonably foreseeable.” 26 C.F.R. § 301.7432-1(f)(2)(vi). The district court
observed that plaintiffs failed to comply with this requirement, noting that in one of
their administrative claims, plaintiffs stated only that the amount they had paid the
IRS exceeded the amount they owed by a “‘substantial amount.’” Aplt. App. at 465
(quoting id. at 167). Ms. Hook offers no plausible argument that this conclusion was
in error. She simply points to the administrative claim referenced in the district
court’s decision and a few other administrative claims, several of which do not
concern the release of liens but instead seek refunds or the return of levied or seized
14
property. None of these state the “dollar amount of the claim.” Accordingly, we
discern no error in the district court’s dismissal of this claim.
CONCLUSION
The judgment of the district court is affirmed. Ms. Hook’s motion to proceed
on appeal without prepayment of costs or fees is granted, and we remind her of her
obligation to continue making partial payments until her entire appellate filing fee
has been paid in full.
Entered for the Court
Jerome A. Holmes
Circuit Judge
15