Vance v. United States Ex Rel. Dowie , 109 F. App'x 294 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 9 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BOBBY DON VANCE,
Plaintiff-Appellant,
v. No. 03-6139
(D.C. No. CIV-02-1664)
UNITED STATES OF AMERICA, (W.D. Okla.)
ex rel. Donald N. Dowie, Jr., Patrick
M. Ryan and Robin J. Cauthron,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ , McCONNELL , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In 1997, the government instituted suit to collect over $900,000 in tax
liabilities against appellant Bobby Don Vance and his wife by foreclosing on tax
liens against the Vance’s real property. Judge Robin Cauthron granted the
government’s motion for summary judgment against Mr. and Mrs. Vance, their
children, and a family trust, holding that Mr. Vance fraudulently transferred the
title of his real property to the family trust. Accordingly, the court authorized the
government to sell the real property. Mr. Vance appealed, and this Court
affirmed the district court’s judgment. United States v. Vance , No. 99-6291,
2000 WL 717087, at *2 (10th Cir. June 2, 2000). A marshal’s sale was scheduled
for October 9, 2002.
Two weeks before the marshal’s sale, Mr. Vance filed a suit alleging that
the government did not have a rightful claim to his property because the judgment
against him had been procured by fraud. He also claimed that collection was
barred by the statute of limitations. He requested an order compelling the
government to return his property and enjoining its sale. The district court denied
his motion for preliminary injunction and, on October 22, 2002, dismissed his suit
under the Anti-Injunction Act, 26 U.S.C. § 7421, and the Declaratory Judgment
Act, 28 U.S.C. § 2201. Not to be daunted, Mr. Vance filed a second lawsuit,
which is the subject of this appeal, on November 22, 2002. The government sold
the property in December 2002.
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On appeal from the October 2002 dismissal of his first suit, Mr. Vance
attempted to raise several new arguments that he had not raised in district court,
including that government agents did not comply with relevant Internal Revenue
Code procedures and that the taking of his property was illegal because a
minimum bid price was never established. We affirmed the district court’s
dismissal and refused to address the arguments made for the first time on appeal.
Vance v. United States , 60 Fed. App. 236, 238-39 (10th Cir. Mar. 17, 2003).
Mr. Vance’s second suit sought to accomplish the same goal as his first: to
prevent the government from collecting delinquent taxes by selling his real
property. But his second suit also alleged that Judge Cauthron and the two
attorneys representing the government in the first suit had violated 26 U.S.C.
§ 7602(d) (limitations on Secretary’s authority to issue administrative summons),
26 U.S.C. § 6501(c) (exceptions to statute of limitations on tax assessment
proceedings), 26 U.S.C. § 6502(a) (statute of limitations on tax levies), 26 U.S.C.
§ 7214(a) (unlawful acts of internal revenue agents), 26 U.S.C. § 6335(e)
(requirements as to manner and conditions of seized-property sales), and
26 U.S.C. 6331(j) (investigative requirements as to status of seized property).
See R. Doc. 1 at 1-2. He claimed entitlement to injunctive relief “beyond reach of
26 U.S.C. 7421” to enjoin the government’s collection activity, and requested an
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order “remanding” the two attorneys and Judge Cauthron “to other authority for
preference of charges” under § 7214(a). Id. at 2.
An out-of-district judge was assigned to the case. The court dismissed the
second suit for failure to state a claim. We review the district court’s rulings
de novo. See Sutton v. Utah State Sch. for Deaf & Blind , 173 F.3d 1226, 1236
(10th Cir. 1999) (review of dismissal under Fed. R. Civ. P. 12(b)(6) for legal
sufficiency of complaint); Rosette, Inc. v. United States , 277 F.3d 1222, 1226
(10th Cir. 2002) (applicability of federal statute is question of law reviewed
de novo ). We have carefully reviewed the district court’s rulings, the record, the
applicable law, and Mr. Vance’s arguments.
We conclude that the Anti-Injunction Act bars the injunctive relief
Mr. Vance requests. See Enochs v. Williams Packing & Navigation Co., 370 U.S.
1, 7 (1962) (“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.”). We further conclude that Mr. Vance is foreclosed from bringing suits
on issues that have already been, or could have been, adjudicated in prior
proceedings, including proceedings that should have been brought in the Tax
Court. See 26 U.S.C. § 6213(a) (providing that notices of tax deficiency may be
challenged by filing petition in Tax Court). Mr. Vance has had the opportunity
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both to challenge the tax assessments and liens in Tax Court, and to litigate the
issues of fraudulent conveyance, statute of limitations, and due process in district
court. He cannot attempt to litigate or relitigate those issues years later by filing
multiple suits collaterally attacking the assessments and judgments. See Guthrie
v. Sawyer , 970 F.2d 733, 735 (10th Cir. 1992) (“A taxpayer who wishes to
challenge the activities of the IRS in sending a notice of deficiency or issuing a
notice of assessment and demand for payment must bring suit under a statute that
waives the sovereign immunity of the United States.”).
On appeal, Mr. Vance argues that his right to bring criminal charges against
Judge Cauthron and the two government attorneys arises under 26 U.S.C. § 7433
(providing for civil action against IRS agents for unauthorized collection actions),
and 18 U.S.C. § 4 (“misprision of felony”). Because neither Judge Cauthron nor
the attorneys are IRS agents, § 7433 provides no cause of action. And 18 U.S.C.
§ 4 simply has no application in this case.
Mr. Vance’s motion to disqualify certain Tenth Circuit judges is denied as
moot because the Tenth Circuit judges he seeks to disqualify are not on this panel.
The judgment of the district court is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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