United States v. John Lezdey , 448 F. App'x 893 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13521 ELEVENTH CIRCUIT
OCTOBER 3, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 8:08-cv-00504-EAK-TGW
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Counter-Defendant-Appellee,
versus
JOHN LEZDEY,
NOREEN LEZDEY,
lllllllllllllllllll Defendants -Counter-Claimants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 3, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
John and Noreen Lezdey, a married couple who filed joint tax returns in
1991 and 1992, were sued by the government to convert an upaid tax assessment
levied by the Tax Court into a judgment. The Lezdeys counterclaimed against the
government and argued that the assessment was obtained through fraud and that
the IRS had incorrectly calculated their tax liability. The district court granted
summary judgment in favor of the government because it found that the Lezdeys’
challenge to their tax liability was barred by res judicata. The Lezdeys appeal.1
We conclude that the district court did not have jurisdiction over the Lezdeys’
challenge to the Tax Court’s assessment and thus dismiss in part.2 But we also
conclude that the district court properly granted summary judgment in favor of the
government and accordingly we affirm in part.3
I.
In 1996, the Lezdeys were served with a notice of tax deficiency for their
1991 and 1992 taxes. The Lezdeys then filed a petition in the Tax Court
contesting the alleged deficiency. Eventually the Lezdeys agreed to a stipulated
1
The Lezdeys are representing themselves in their appeal, as they did in the district
court. We note, however, that Mr. Lezdey is an attorney.
2
We are obligated to consider jurisdictional questions sua sponte. Frulla v. CRA
Holdings, Inc., 543 F.3d 1247, 1250 (11th Cir. 2008).
3
We review a district court’s order rendering summary judgment de novo. Langfitt v.
Fed. Marine Terminals, Inc., 647 F.3d 1116, 1120 n. 10 (11th Cir. 2011).
2
assessment, which reduced their liability and which the Tax Court entered. But
the Lezdeys challenged the stipulated decision in a motion for reconsideration,
arguing that it had been obtained through fraud. The Tax Court denied their
motion for reconsideration and the Lezdeys appealed to the Third Circuit, which
affirmed the Tax Court. The Lezdeys have still not paid the assessment and so,
nearly a decade after the Third Circuit’s decision, the government sued them to
convert the unpaid tax assessment to a judgment. The government obtained a
judgment in its favor, which the Lezdeys now appeal.
II.
When a taxpayer is served with a notice of deficiency, he has two ways to
contest his tax liability. He may pay the tax and then sue the government in
district court to recover what he claims he should not have paid. Solitron Devices,
Inc. v. United States, 862 F.2d 846, 848 (11th Cir. 1989). Or he can petition the
Tax Court and contest his liability there before paying. Id. But once a taxpayer
petitions the Tax Court to contest his tax liability for a particular year, he is barred
from relitigating that liability later. 26 U.S.C. § 6512(a). Section 6512(a) is a
jurisdictional bar to such challenges.4 Solitron Devices, 862 F.2d at 848.
4
Although there are certain exceptions to § 6512(a), none apply to the Lezdeys’
counterclaims.
3
Because the Lezdeys had already petitioned the Tax Court to contest their
1991 and 1992 tax liability, we conclude that the district court did not have
jurisdiction to hear their counterclaims. Accordingly, we dismiss that portion of
the Lezdeys’ appeal. As for the remainder of the appeal, we affirm the district
court’s judgment because the government was entitled to have the Lezdeys’
unpaid tax assessment converted to a judgment. See 26 U.S.C. §§ 7401–7403;
United States v. Ryals, 480 F.3d 1101, 1104 (11th Cir. 2007).
DISMISSED in part, AFFIRMED in part.
4