DocketNumber: No. 2518-04
Citation Numbers: 2008 U.S. Tax Ct. LEXIS 33, 131 T.C. No. 15, 131 T.C. 215
Judges: GOEKE,COLVIN,COHEN,WELLS,FOLEY,VASQUEZ,GALE,THORNTON,MARVEL,HAINES,WHERRY,KROUPA,GUSTAFSON,PARIS,MORRISON,HOLMES
Filed Date: 12/15/2008
Status: Precedential
Modified Date: 1/13/2023
P-W received distributions during 2001 made pursuant to a QDRO after her ex-husband retired from the U.S. Air Force. Ps did not include the 2001 distribution in income when they filed their joint 2001 Federal tax return. R issued a notice of deficiency in which he determined that Ps were liable for income tax on the distribution.
*215 GOEKE,
The following facts are stipulated or are not disputed by the parties. The parties' stipulation of facts and the accompanying exhibits are incorporated herein by this reference.
Petitioners resided in California at the time that the petition was filed.
Before her marriage to Larry G. Mitchell, petitioner was married to Bobbie Leon Walton. At the time of their marriage, Mr. Walton was on active duty in the U.S. Air Force (USAF). Mr. Walton and petitioner separated in 1985. Pursuant to a final judgment entered by the Superior Court of the State of California (superior court) their divorce became final on August 29, 1986. On August 1, 1990, Mr. Walton retired from the USAF after 26 years on active duty and began receiving military retired pay. Petitioner subsequently petitioned the superior court with respect to her interest in Mr. *216 Walton's military retired pay. On January 2, 1991, the superior court entered an order (order) which stated in pertinent part: 2. Servicemember [Mr. Walton] retired from the United States Air Force on August 1, 1990, with fully vested retirement rights and benefits, a portion of which are community property of Servicemember and of *35 Servicemember's former spouse, * * * * 4. * * * [Petitioner] is now entitled to an order dividing the military retirement to the extent same was earned by Servicemember during the marriage to * * * [her]. * * * * 8. * * * [Petitioner] shall be awarded as her sole and separate property, one-half (1/2) of the community property interest in Servicemember's net disposable military retirement pay as set forth in the California case of 9. The community property interest in the Servicemember's net disposable retirement pay is determined to be 48.7%. 10. *36 * * * [Petitioner's] interest in Servicemember's net disposable retirement pay is determined to be 24.35%.
Attached to the order was a factsheet titled "DIRECT PAYMENTS FROM U.S. AIR FORCE RETIRED PAY PURSUANT TO THE UNIFORMED SERVICES FORMER SPOUSES' PROTECTION ACT" (factsheet). The factsheet stated in pertinent part: j. Taxes may be held only from the Air Force retiree's pay. Funds may not be held for taxes from the ex-spouses portion. For further information, we refer you to the nearest Internal Revenue Service office.
Sometime in 1991 petitioner began receiving monthly payments from the Defense Finance and Accounting Service (DFAS) for her interest in Mr. Walton's military retired pay pursuant to the order. For the taxable year 2001 she received payments from DFAS in the aggregate amount of $ 5,126. DFAS issued to petitioner a Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, *217 Insurance Contracts, etc., for the taxable year 2001 which reported both the gross distribution and the taxable amount as $ 5,126 and the amount of Federal income tax withheld as zero.
Petitioners timely filed a joint Form 1040, U.S. Individual Income Tax Return, for *37 2001 but did not report the $ 5,126 distribution that petitioner received from DFAS. On November 10, 2003, respondent issued to petitioners a notice of deficiency for the taxable year 2001. In the notice respondent determined that petitioners failed to report the $ 5,126 in their gross income.
On February 9, 2004, petitioners filed an imperfect petition. On March 26, 2004, petitioners filed an amended petition alleging that taxes were to be taken into account before petitioner was issued her share of Mr. Walton's retirement benefits and that if petitioner's share were taxed, it would be subject to double taxation.
A trial was held on June 24, 2005, in Los Angeles, California.
Petitioners argue that taxes should have been withheld on the entire amount of the pension payments disbursed to Mr. Walton before petitioner was paid her share. Petitioners maintain that if petitioner is required to pay Federal income tax on her share, then Mr. Walton's pension is being subject to double taxation, both on disbursement to Mr. Walton and again when petitioner receives her share. Respondent argues that tax was withheld only on Mr. Walton's share of the military pay, not on petitioner's share. *38 2
Petitioner's interest in the military retired pay was determined according to the laws of the State of California. In the State of California, community property principles apply in divorce proceedings. Consistent with these principles, each spouse is considered to have a one-half ownership interest in all property earned by either spouse during the marriage. See
Under California law post-
While State law determines the nature of a property interest, Federal law determines the Federal taxation of that property interest.
As a general rule, the Internal Revenue Code imposes a tax on the taxable income of every individual. See
Under
A domestic relations order (DRO) qualifies as a QDRO only if it: (1) Creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan; (2) clearly specifies facts required by
Nonetheless, even if the superior court order had not constituted a QDRO under
Petitioners do not dispute that the superior court awarded petitioner a community property interest in Mr. Walton's military retired pay and that she received $ 5,126 pursuant to the QDRO. Instead, petitioners argue that the payments petitioner received for her interest in Mr. Walton's military *220 retired pay are not subject to income tax because the QDRO specified that all taxes should have been withheld from the military retirement pay before it was divided and distributed. Petitioner draws support for this argument from a paragraph in the factsheet attached to the QDRO which stated in pertinent part: i. The amount payable to a spouse or former spouse under this law is limited to 50 percent
Congress recognized that subtracting tax withholdings from the computation of disposable retired pay created unfairness to the service member's spouse. H. Rept. 101-665, at 279-280 (1990). Accordingly, Congress amended the definition of "disposable retired pay" such that the disposable retired pay is not reduced by income taxes withheld.
The calculation of disposable retired pay, however, does not mean that *44 petitioner's allotment is not taxable, nor does it mean that petitioner's allotment is exempt from tax because tax was already withheld on Mr. Walton's allotment. Title
Petitioner essentially argues that her disbursement is being subjected to double taxation. Petitioner, however, did not produce any evidence, and the record is void of any evidence, *221 that double taxation occurred. Petitioner did not provide any evidence about the amount of the pension which was included in Mr. Walton's taxable income. Moreover, there is nothing in the QDRO stating that petitioner's interest in Mr. Walton's military retired pay is not taxable or has already been subject to tax. As indicated above, the factsheet provides in pertinent part that "Taxes may be held only from the Air Force retiree's pay. *45 Funds may not be held for taxes from the ex-spouses [sic] portion." This supports respondent's argument that taxes were not withheld on petitioner's portion of the military retired pay.
On the basis of the law as it was in effect on the date of petitioner's final judgment and the date of the QDRO, petitioner's interest is calculated on Mr. Walton's military retired pay less income tax withheld. Petitioner provided no evidence that income taxes were withheld from her portion of the military retired pay. As explained earlier, petitioner's interest is taxable. Accordingly, we conclude that the $ 5,126 petitioner received in 2001 for her interest in Mr. Walton's military retired pay is includable in petitioners' gross income.
To reflect the foregoing,
Reviewed by the Court.
HOLMES,
Tucked away in *46 footnote 2 is the answer: A solid majority of the Court does not wish to address the question of whether our decision in a small tax case collaterally estops future *222 litigation of the same issue between the same parties in a later-filed regular tax case. Our opinion today technically avoids the issue, but in doing so throws into question at least three summary opinions, 1*47 two of our Rules, 2 and one memorandum opinion 3 where we have given or said we would give S-case decisions collateral-estoppel effect. It should, I think, be construed by those who read and rely on our opinions as standing for the proposition that half our Court's caseload -- cases leading to decisions in S cases -- are like a "restricted railroad ticket, good for this day and train only." 4 All agree that the Code makes S-case decisions nonprecedential, but today's opinion may suggest more radically that they are without effect on future litigation at all.
I write separately to explain the issue that we are avoiding today, and how I think it should have been resolved. 5
The facts in this case were largely undisputed and, as the trial judge who heard the case, I do not disagree with the majority's recitation of them here. But the case doesn't really begin with Mitchell's 2001 taxes. Mitchell began receiving the pension payments due under the QDRO in 1991. She consistently reported none of them on her tax returns until 2002, when the IRS sent her a notice of deficiency challenging her failure to report the payments on her 2000 tax return.
Mitchell began a case in our Court, and chose for it to be a small tax case (S *48 case) under
When Mitchell filed her 2001 joint income tax return with her second husband (which, I want to note, she filed well before we issued
Once the decision in
The transcript of the trial consists of 30 pages, only 11 of which show testimony or the receipt of evidence. The only really important question was the first one: The Court: Now, are there any differences between *50 this tax year, which is for 2001, and the tax year that [the special trial judge] wrote about? * * * * *224 Mr. Mitchell: The only thing I think that may have changed is there may be a little slight difference in the amount that she received. But I don't think so.
A.
I begin by outlining the key characteristics of S cases. One of the most important is that S status is voluntary. When Mitchell filed her first petition in our Court, she used a form we had specifically designed for small cases, but with a box that she had only to check to choose regular-case status. 6 Either party may also ask that we remove this designation any time before trial.
Congress considered this point carefully before giving taxpayers the option of choosing S-status for their cases. The S designation has benefits for taxpayers who choose it -- they get relaxed rules of evidence and procedure, a longer list of cities from which to choose a place of trial, and usually a speedier decision. See S. Rept. 91-552, at 302-304 (1969),
But any increase in the probability of error is reduced by our Rules. Apart from the elimination of the right of appeal and precedential effect, we decide S cases very much like regular cases. In an S case, just as in a regular case, the judge has to prepare an oral or written "summary of the facts and reasons for the proposed disposition of the case."
B.
Issue preclusion or collateral estoppel is a doctrine with deep roots in our legal system. The doctrine is easy to state: "when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or different claim." 1 (1) The issue in the second suit must be identical in all respects with the one decided in the first suit. (2) There must be a final judgment rendered by a court of competent jurisdiction. (3) Collateral estoppel may be invoked against parties and their privies to the prior judgment. *226 (4) The parties must actually have *54 litigated the issues and the resolution of these issues must have been essential to the prior decision. (5) The controlling facts and applicable legal rules must remain unchanged from those in the prior litigation.
. The issue is the same; . the decision in . the parties are identical; . the issue was actually litigated and was essential to the outcome; and . neither the terms of the QDRO nor the relevant law changed from one year to the next.
The Supreme Court told us just earlier this year that "[t]he preclusive effect of a federal-court judgment is determined by federal common law."
This means that the Commissioner has a problem -- Congress, by enacting
I will therefore sort the possible objections 8*57 to giving collateral-estoppel effect to our decisions in S cases into three parts: . . the absence of appealability; and . the peculiar problem of applying collateral estoppel in a case appealable to the Ninth Circuit because of
A.
But what exactly does the phrase "shall not be treated as a precedent for any other case" mean? One possible reading is to look at Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in the following circumstances. (i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.
One might argue, on the principle of inclusio
I think such a reading is wrong. First, barring something unusual in the context or the structure of the Code, legal terms like "precedent" -- even when used in the Internal Revenue Code-should be read as having their ordinary meaning to lawyers.
A good illustration of this is our opinion in Summary Opinions of this Court contain the caveat: "[The]case was heard pursuant to the provisions of
Consider as well the Third Circuit's rule on citing nonprecedential opinions, which seems to be unique among the circuit courts 13 in stating only that "[t]he Court by tradition does not cite to its not precedential opinions as authority. Such opinions are not regarded as precedents that bind the Court." We recognize that an unpublished opinion has no precedential value and should not be cited as authority in a subsequent case. * * * The reference made here is necessary, however, to record the law of this case.
There would also be some perverse consequences of construing the phrase "not be treated as a precedent" in
And this leads to a point making the majority's reluctance to decide the issue even odder: Two of our own rules *63 parallel pretty closely the noncitation rules of the circuit courts -- with no exclusion for S cases.
*231 But even if
B.
As I've already noted, one of the exceptions to the general rule giving earlier judgments collateral-estoppel effect in later litigation is if "[t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action." 1 . When those authorities ask whether a party could not "as a matter of law" obtain review, do they mean that a party choosing a procedure without a right of appeal cannot be collaterally estopped? . Are there exceptions to the Restatement's requirement of reviewability that are analogous to our S cases? . Does "reviewability" mean the same as "appealability"?
Because our Court hasn't answered these questions before, we should be looking to analogous procedures in other areas of law where simplified litigation often comes attached to limited rights of appeal. Most of these spring from arbitration and administrative *66 law.
Begin with arbitration. Cases discussing the collateral-estoppel effect of arbitration awards are especially interesting because arbitration awards, like our decisions in S cases, are typically not appealable. Learning whether they give rise to collateral estoppel may well answer the first question that we posed: Can a party choosing a procedure without a right of appeal be collaterally estopped? In answering this question, courts generally look at what the parties intended. This is no surprise since most arbitration agreements are "creature[s] of contract," and participants in them voluntarily accept limited judicial review over the issues they agree will be arbitrated.
There is an important exception to this default rule: The courts have sometimes denied collateral estoppel when a party tries to use an unappealed arbitration award to preclude a federal statutory civil-rights claim. See, e.g.,
Courts follow *68 a similar approach in cases analyzing the collateral-estoppel effect of administrative-agency decisions. There the same principle applies: Collateral estoppel of a decision with limited or nonexistent judicial review should be allowed only when the parties voluntarily decide to submit their dispute to the agency for decision. See
These cases strongly suggest that petitioners who choose S-case status should be treated the same as parties who opt to arbitrate disputes or take them to an administrative agency -- it is their choice that deprives them of the right to seek appellate review, not (to use the Restatement's careful formulation) "a matter of law." Seen with this parallel in mind, S-case petitioners like Mitchell should not be able to defeat the affirmative defense of collateral estoppel because they themselves chose to give up their right of appeal.
What makes this analogy less than perfect is that the choice of S-case status is left up to the petitioner, and not the mutual agreement of the petitioner and the Commissioner. *233 Our rules do give the Commissioner the right to move for an order deleting the S-case designation,
So, while I think we should view the voluntary choice of S-case status as a strong argument in favor of allowing decisions in S cases to collaterally estop later litigation, it's not necessarily a clinching one. I'd therefore move on to the second question: Are there exceptions to the Restatement's requirement of reviewability for situations analogous to our S cases?
The comments to the Restatement make the scope of this requirement seem quite broad: "There is a need for an * * * exception to the rule of preclusion when the determination of an issue is plainly essential to the judgment but the party who lost on that issue is, for some other reason, disabled as a matter of law from obtaining review by appeal or, where appeal does not lie, by injunction, extraordinary writ, or statutory review procedure." Quite different calculations attend the question whether issue preclusion can rest on a judgment that falls into a category that cannot generally be appealed. Although it is tempting to suggest a broad general principle that preclusion is never appropriate, [and here the treatise cites to the Restatement] the matter is not so simple. At most, the unavailability of appeal may count as an important factor in contemplating preclusion, and even that view must be approached with caution * * *.
18A Wright & Miller, Federal Practice and Procedure, Jurisdiction 2d sec. 4433, at 108-09 (2002) (fn. refs. omitted).
The treatise gives two counterexamples to the *71 "broad general principle" of the Restatement. The first is peculiar to a *234 very small set of cases -- those within the original jurisdiction of the Supreme Court. Though collateral estoppel might not be exactly the right pigeonhole in which to put that Court's deference to its own previous findings of fact, a recognition of the benefits of rules of finality means that "[t]his Court does not reopen an adjudication in an original action to reconsider whether initial factual determinations were correctly made."
The second counterexample -- though flowing from the same spring of judicial desire for finality and consistency -- is closer to what we have here. In the old case of
The Supreme Court disagreed. The doctrine of collateral estoppel, so essential to an orderly and effective administration of justice, would lose much of its value if it were held to be inapplicable to those judgments in the Circuit Courts of the United States which, by reason of the limited amount involved, could not be reviewed by this court. * * * Nor can the possibility that a party may legitimately or properly divide his causes of action, so as to have the matter in dispute between him and his adversary adjudged in a suit that cannot, after judgment, and by reason of the limited amount involved, be carried to a higher court, affect the application of the general rule * * *.
We thus answer the second question that we posed by concluding that there are indeed situations where the "full chain of appellate review" is not necessary to give an earlier decision collateral-estoppel effect.
*235 But we don't rest entirely on this old, and not-very-often-cited *73 precedent, 18 nor on Mitchell's voluntary choice of S-case status for
S cases -- even though not appealable -- are reviewable.
Over the years, *74 of course, commissioners became special trial judges and our chief judges received, and promptly exercised the power to delegate to them the authority to enter decisions in S cases. See Delegation Order No. 11, 86 T.C. VII (1986). But the parallel treatment of summary opinions and reports from the regular divisions continued. Delegation Order No. 11 directed (except in cases decided by bench opinion) that decisions be made only "after the Special Trial Judge prepares a summary of the facts and reasons for the proposed disposition of the case and submits said summary to the Chief Judge, or to another Judge designated by the Chief Judge." Our current
In any event, the
We thus answer the third question that we posed by concluding that appealability is not synonymous with reviewability.
Unlike much of tax law, with its detailed if tangled skein of statute, regulation, and administrative procedure, the rules of collateral estoppel in federal courts are generally fashioned by judges guided by reasonableness and precedent. Though the majority opinion ensures there will continue to be no precedent quite on point, I don't think that the absence of appealability by itself should prevent the *77 decision in an S case from collaterally estopping relitigation of the same issue.
Even if the majority had gone along with me this far, there still would have been one last obstacle:
But I am confident that
And, as the Ninth Circuit also emphasized, the decision in
Another difference is that the decision discussed in
Our S cases come with a complete record of the proceedings. Every S case starts with a petition listing the issues in dispute. If an S case goes to trial, there is a transcript.
I would conclude from this that
Our tax system requires an annual reporting of income and deductions and, for most people, this requires annual reporting for each calendar year separately. But there are many questions that, answered for one year, might affect many later years -- are payments from an ex-spouse made under a divorce decree deductible alimony or a nondeductible property settlement? Is the interest on a bond issued by a public authority tax exempt or taxable? What is the depreciable cost of a particular capital asset?
This gives rise to cases like
There's no reason to encourage this sort of thing. As the Supreme Court has repeatedly noted: "A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a 'right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies.'"
This case gave us a chance to fit the estoppel effect of our summary opinions into the already quite extensive caselaw on the effect of judgments generally. We should have taken it.
HALPERN, J., agrees with this concurring opinion.
1. This case was reassigned to Judge Joseph R. Goeke by order of the Chief Judge.
2. On Nov. 23, 2004, this Court issued an opinion in
1. See
2.
3.
4.
5. See
6. We recently adopted a new form that requires a taxpayer to choose between small-case and regular-case procedures. If he doesn't, the default rule is to designate his case a regular one. Tax Court Form 2 (March 2008).↩
7. We also must remove the S designation after trial begins but before the decision becomes final if the case no longer meets the jurisdictional requirements.
8. The majority's stated explanation is that it won't address the Commissioner's collateral-estoppel defense "because this case was tried and presents a legal issue." Majority op. note 2. Neither of these is very persuasive. Collateral estoppel is an affirmative defense, not a defect in pleading of the sort that's waived if not raised before trial. Cf.
9.
10. See Cooper, "Citability and the Nature of Precedent in the Courts of Appeals: A Response to Dean Robel",
11. See
12. See also
13. Cooper,
14.
15. Consider how the result today might affect a case like
16. This is only true, however, in future litigation between the same parties. Because of the informal nature of arbitration, nonmutual collateral estoppel -- where a nonparty uses the prior decision against one of the parties to that decision -- is generally not available for arbitration decisions. E.g.,
17. See
18. One must recognize that, despite its antiquity,
19. Some S cases have even produced T.C. opinions. See, e.g.,
Jack E. Golsen and Sylvia H. Golsen v. Commissioner of ... , 445 F.2d 985 ( 1971 )
miriam-winters-v-abe-lavine-individually-and-as-commissioner-of-the-new , 574 F.2d 46 ( 1978 )
Kornman & Associates, Inc. v. United States , 527 F.3d 443 ( 2008 )
Aetna Casualty and Surety Company v. General Dynamics ... , 968 F.2d 707 ( 1992 )
George EDGE, Appellant, v. Richard SCHWEIKER, Secretary of ... , 814 F.2d 125 ( 1987 )
marilyn-benjamin-administrator-for-the-estate-of-marc-benjamin-and-gloria , 869 F.2d 107 ( 1989 )
Peterson v. STATE OF CAL. DEPT. OF CORRS. AND REH. , 451 F. Supp. 2d 1092 ( 2006 )
Lucas v. Earl , 50 S. Ct. 241 ( 1930 )
Smith v. Allwright , 64 S. Ct. 757 ( 1944 )
Donald A. Peck Judith W. Peck v. Commissioner of Internal ... , 904 F.2d 525 ( 1990 )
Casas v. Thompson , 42 Cal. 3d 131 ( 1986 )
In Re Marriage of Gillmore , 29 Cal. 3d 418 ( 1981 )
99-cal-daily-op-serv-2990-1999-daily-journal-dar-3879-mark-j-wehrli , 175 F.3d 692 ( 1999 )
M.J. Woods, Inc. v. Conopco, Inc. , 271 F. Supp. 2d 576 ( 2003 )
Johnson Co. v. Wharton , 14 S. Ct. 608 ( 1894 )
Blair v. Commissioner , 57 S. Ct. 330 ( 1937 )
Southern Pacific Railroad v. United States , 18 S. Ct. 18 ( 1897 )
Poe v. Seaborn , 51 S. Ct. 58 ( 1930 )
Freytag v. Commissioner , 111 S. Ct. 2631 ( 1991 )