United States v. Lola C. Brokemond , 304 F. App'x 765 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 4, 2008
No. 08-12367 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01022-CV-J-12TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOLA C. BROKEMOND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 4, 2008)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Lola Brokemond, proceeding pro se, appeals the district court’s grant of
summary judgment to the Government in the Government’s suit under 26 U.S.C.
§ 7405 to recover tax refunds that were erroneously issued to Brokemond. On
appeal, Brokemond argues that summary judgment was not appropriate because
she did not knowingly or intentionally misrepresent facts on the tax forms that
resulted in erroneous refunds being issued to her. She asserts that an element of
willfulness should be required just as in tax debtor cases. She also states that she
believed that her refund claims were legitimate based on the fact that the Internal
Revenue Service (“IRS”) asked her to disallow the claims, and there was no
evidence of fraud or deception as she made numerous calls to the IRS to ensure the
authenticity of her claims. Brokemond claims that she trusted a tax preparer to file
a legitimate tax form, and she trusted the IRS to properly process the claim forms
that she submitted. In her construed reply brief, Brokemond asserts that recovery
of the refunds by the Government would be unjust because she “drastically”
changed her position in reliance on the individual who prepared the refund claims
and the lack of advice she received from the Government. She adds that there is no
chance of the misrepresentation happening again.
“[We] review[ ] the district court’s grant of summary judgment de novo,
applying the same legal standard that the district court employed in the first
instance.” Yang v. Government Employees Ins. Co., 146 F.3d 1320, 1322 (11th
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Cir.1998). “[A] moving party is entitled to summary judgment ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.’” Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quoting Fed.R.Civ.P. 56(c)).
The Government may bring a civil action to recover erroneously-refunded
taxes. 26 U.S.C. § 7405(b). To prevail in an action brought under § 7405(b), the
Government must prove that: (1) a refund of a sum certain was made to a taxpayer;
(2) the tax refund was erroneously issued; and (3) the lawsuit to recover the
erroneously issued taxes was timely filed. See 26 U.S.C. § 7405(b). Recovery of
erroneous refunds under § 7405 is only allowed if the suit is brought within two
years of the issuance of the refund, but the suit may be brought at any time within
five years of the issuance of the refund “if it appears that any part of the refund was
induced by fraud or misrepresentation of a material fact.” 26 U.S.C. § 6532(b).
“Statutes of limitations sought to be applied to bar rights of the Government, must
receive a strict construction in favor of the Government.” Badaracco v. C.I.R., 464
U.S. 386, 391, 104 S. Ct. 756, 761, 78 L. Ed. 2d 549 (1984).
As an initial matter, Brokemond abandoned any argument that she has
changed her position such that recovery of the refunds would be unjust by failing
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to raise that argument in her initial brief. See Hartsfield v. Lemacks, 50 F.3d 950,
953 (11th Cir. 1995) (quotations omitted) (noting that “[i]ssues that clearly are not
designated in the initial brief ordinarily are considered abandoned”). Brokemond
did attempt to raise this argument in her construed reply brief. As such,
Brokemond failed to properly raise the issue on appeal. United States v. Britt, 437
F.3d 1103, 1104 (11th Cir. 2006) (noting that this Court does not consider issues
raised for the first time in an appellant’s reply brief).
The district court did not err in granting summary judgment to the
Government. First, Brokemond admits that she received refunds of a sum certain,
i.e., $32,180,40 and $35,204.48. See 26 U.S.C. § 7405(b). Second, Brokemond
admits that the tax refunds were erroneously issued. Because Brokemond has
admitted the first two elements of § 7405(b), the only element in question is
whether the Government’s lawsuit to recover the refunds was timely filed. See 26
U.S.C. § 7405. Brokemond received the erroneous refunds in 2003, and the
Government sued her in 2006, outside the two-year statute of limitations. Thus,
the suit was timely only if the Government was entitled to use the five-year statute
of limitations, which applies when an erroneous refund has been induced by
misrepresentation of a material fact. See 26 U.S.C. § 6532(b).
Brokemond does not dispute that the Forms 2439 contained
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misrepresentations of material facts, and the misrepresentations induced the
refunds. Instead, she argues that she did not know about the misrepresentations at
the time the tax forms were filed, and she had no intent to make the
misrepresentations. The plain language of the § 6532(b) only requires that the
refunds be induced by misrepresentation. We need not decide in this case the
precise scope of the statutory term “misrepresentation.” See United States v.
Northern Trust Co., 372 F.3d 886, 889-90 (7th Cir. 2004) (determining that
misrepresentation under § 6532(b) is not limited to intentional deception); Lane v.
United States, 286 F.3d 723, 732 (4th Cir. 2002) (holding that misrepresentation
“lies somewhere between the words ‘misstatement’ and ‘fraud’ on a scale of
increasing culpability”). Under the undisputed facts of this case, there has been a
sufficient misrepresentation under any reasonable interpretation.
Accordingly, the misrepresentations in Brokemond’s refund requests
triggered the five-year statute of limitations. Brokemond’s argument that a
willfulness requirement should apply, just as in tax debtor cases, is not meritorious
because § 6532(b) does not contain an explicit willfulness requirement that the tax
debtor subsection that she apparently refers to in her brief does. See 11 U.S.C. §
523(a)(1)(C) (providing that “the debtor made a fraudulent return or willfully
attempted in any manner to evade or defeat such tax”).
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Because Brokemond’s tax refunds were induced by misrepresentations of
material facts, we affirm the district court’s grant of summary judgment in favor of
the Government.
AFFIRMED.1
1
Brokemond’s motion to amend brief is granted to the extent that the arguments
contained in that motion are construed as a reply brief.
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