Frances Rogers v. CIR ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20‐2789, 20‐2790, 20‐2791, 20‐2869, 20‐2870, 20‐2871,
20‐2872 & 20‐2873
FRANCES L. ROGERS,
Petitioner‐Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent‐Appellee.
____________________
Appeals from the United States Tax Court.
Nos. 2564‐18, 29356‐14, 15112‐16, 30586‐09, 1052‐12, 15682‐13,
30482‐13 & 20910‐14.
____________________
SUBMITTED* APRIL 12, 2021 — DECIDED AUGUST 17, 2021
____________________
Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.
* This successive appeal has been submitted to the original panel pur‐
suant to Operating Procedure 6(b). After reviewing the briefs and the rec‐
ord, the panel is unanimously of the view that oral argument is unneces‐
sary. Accordingly, the appeal has been submitted on the briefs and the
record alone. See Fed. R. App. P. 34(a).
2 Nos. 20‐2789, et al.
SCUDDER, Circuit Judge. Married since 1967, John and
Frances Rogers filed joint federal income tax returns for many
years. They underreported their tax obligations many times
over, and the misreporting was the product of a fraudulent
tax scheme designed by John, a Harvard‐trained tax attorney.
The fraud did not elude the Internal Revenue Service, though,
and the many subsequent collection and enforcement pro‐
ceedings in the U.S. Tax Court have not gone well for the Rog‐
erses. Our court has affirmed the Tax Court’s rulings every
time.
Before us now is another appeal by Frances challenging
two Tax Court decisions denying her requests for what the
Tax Code calls innocent spouse relief. Our review of the rec‐
ord shows that the Tax Court took considerable care assessing
Frances’s pleas for relief, in the end denying them largely on
the basis that she was aware of too many facts and too many
warning signs during the relevant tax years to escape financial
responsibility for the clear fraud perpetrated on the U.S.
Treasury. While the tragedy of what Frances has endured
over the years is in no way lost on us, we are left to affirm, for
the Tax Court got it right.
I
A
The Rogerses have been frequent litigators in both the U.S.
Tax Court and our court. John developed and marketed tax
shelters that we have since held to be “abusive sham[s].”
Sugarloaf Fund, LLC v. Comm’r, 911 F.3d 854, 856 (7th Cir. 2018)
(Sugarloaf I) (citing Superior Trading, LLC v. Comm’r, 728 F.3d
676 (7th Cir. 2013)). A part of John’s tax schemes involved a
“partnership’s [Sugarloaf Fund, LLC’s] acquisition and
Nos. 20‐2789, et al. 3
subsequent transfer of highly distressed or uncollectible ac‐
counts receivable from retailers located in Brazil. The point of
the transfers was to convey interests in the receivables—assets
with meaningful face value but no economic value in the
hands of the Brazilian retailers—to U.S. taxpayers, who then
deem them uncollectible and use the concocted loss to reduce
their tax liability.” Sugarloaf Fund, LLC v. Comm’r, 953 F.3d 439,
440 (7th Cir. 2020) (Sugarloaf II).
As the architect of this scheme, John used the tax shelters
to underreport his personal income tax obligations. But the
IRS eventually caught on to his underpayments and in time
litigation ensued. The Tax Court at each turn concluded that
John perpetuated fraudulent tax avoidance over the course of
multiple tax years, and it thus imposed significant liability on
the Rogerses. We have affirmed the Tax Court’s decisions on
appeal each time.
Because we have discredited John’s tax shelter on multiple
occasions, we assume familiarity with his schemes and our
prior decisions, and we turn to the issues presented in this ap‐
peal. See generally Sugarloaf II, 953 F.3d 439; Sugarloaf I, 911
F.3d 854; Rogers v. Comm’r, No. 15‐3678 (7th Cir. Nov. 3, 2016);
Superior Trading, 728 F.3d 676; Rogers v. Comm’r, 728 F.3d 673(7th Cir. 2013).
B
Today’s case concerns not John’s fraudulent tax scheme,
but his wife Frances’s liability for the couple’s personal in‐
come tax deficiencies for the years 2003, 2005 to 2007, and 2009
to 2012. Married couples who file joint tax returns are gener‐
ally jointly and severally liable for income tax liabilities. See
26 U.S.C. § 6013(d)(3). The Tax Code also provides an
4 Nos. 20‐2789, et al.
exception—called innocent spouse relief—to protect against
the injustice of requiring a spouse, who has no actual and
meaningful responsibility for the underpayment, to bear the
tax liability alone. See id. § 6015. This appeal centers on
Frances’s ability to take advantage of that exception.
Three years ago, we affirmed the Tax Court’s denial of
Frances’s request for innocent spouse relief for the 2004 tax
year. See Rogers v. Comm’r, 908 F.3d 1094 (7th Cir. 2018) (Rog‐
ers 2018). In doing so, we observed that Congress permits in‐
nocent spouse relief only if the petitioner has not “partici‐
pated meaningfully in [the] prior proceeding” during which
tax liabilities were resolved. Id. at 1096 (quoting 26 U.S.C.
§ 6015(g)(2)). Because the Tax Court was on solid ground in
finding that Frances meaningfully participated in the 2012 Tax
Court trial conducted to resolve the Rogerses’ disputed tax li‐
ability for 2004, she was not entitled to innocent spouse relief.
We concluded that the Tax Court committed no clear error in
discrediting Frances’s contention that she lacked knowledge
of business and financial matters and did not understand
what was taking placing during the 2012 trial—which she at‐
tended in full. See id. at 1096–97.
C
Frances returned to the Tax Court, this time seeking inno‐
cent spouse relief for the following tax years: 2003, 2005 to
2007, and 2009 to 2012. The Tax Court denied her relief in two
opinions.
1. April 17, 2018 Tax Court Opinion (Tax Years 2003, 2005–
2007, 2009)
For the tax years 2005 to 2007 and 2009, the Tax Court con‐
ducted a bifurcated trial, holding one proceeding to address
Nos. 20‐2789, et al. 5
the Rogerses’ tax deficiencies and a separate one to consider
Frances’s innocent spouse claims for those years and for the
2003 tax year. In a single opinion, the Tax Court upheld the
tax deficiencies and concluded that Frances was not entitled
to innocent spouse relief for any of the years at issue.
For 2003 specifically, the Tax Court held that principles of
res judicata codified in 26 U.S.C. § 6015(g)(2) barred Frances
from innocent spouse relief. And for the remaining years, the
Tax Court applied 26 U.S.C. § 6015(b) and (f), along with the
factors outlined in Resser v. Commissioner, 74 F.3d 1528 (7th
Cir. 1996), to determine that she knew or had reason to know
of the tax understatements in the joint returns she filed with
John. The Tax Court further found that Frances’s insistence
that she lacked any awareness of the underreporting—all a
product of John’s fraudulent tax schemes—was not credible.
Nor did the Tax Court see any inequity in holding Frances li‐
able for the underpayment deficiencies.
2. June 18, 2020 Tax Court Opinion (Tax Years 2010–2012)
After the Tax Court upheld deficiencies for the years 2010
to 2012, it held a separate trial to resolve Frances’s request for
innocent spouse relief for those same years. Unlike the previ‐
ous trial, during which Frances’s husband John represented
her, she retained separate counsel from the law firm McDer‐
mott Will & Emery LLP. Frances also called nine witnesses to
testify on her behalf about her trustworthiness, the marital an‐
guish and challenges she had endured for over a decade, and
her involvement in John’s law firm and business dealings,
among other things. Even with this additional testimony,
however, the Tax Court rejected her request for innocent
spouse relief largely for the same reasons outlined in its 2018
6 Nos. 20‐2789, et al.
opinion. The Tax Court also denied Frances’s motion for a
new trial for the tax years 2003, 2005 to 2007, and 2009.
Frances now appeals these decisions.
II
A
For all the tax years at issue, Frances sought innocent
spouse relief through two Tax Code provisions: 26 U.S.C.
§ 6015(b) and § 6015(f).
Section 6015(b) provides relief from joint and several tax
liability when the petitioning taxpayer satisfies the following
requirements: (1) a joint return was made, (2) there is an un‐
derstatement of tax attributable to the errors of one individual
filing the return, (3) the other individual who filed the return
did not know, and had no reason to know, of the understate‐
ment at the time of signing the return, (4) it would be inequi‐
table to hold the other individual liable for the deficiency in
tax resulting from the understatement, and (5) the other indi‐
vidual elects (on a form prescribed by the Secretary) the relief
provided. 26 U.S.C. § 6015(b)(1)(A)–(E). The parties before us
here only dispute the Tax Court’s analysis of the knowledge
and equity prongs.
The second provision, § 6015(f), provides for catch‐all re‐
lief sounding in equity and states that the Tax Court may re‐
lieve one spouse from liability if, “taking into account all the
facts and circumstances, it is inequitable to hold the individ‐
ual liable for any unpaid tax or any deficiency (or any portion
of either),” and “relief is not [otherwise] available.” Id.
§ 6015(f)(1)(A)–(B).
Nos. 20‐2789, et al. 7
In considering the Tax Court’s denial of relief, we review
its legal conclusions de novo and its factual findings for clear
error. See Resser, 74 F.3d at 1535. Under the clear error stand‐
ard, we reverse only if we are left “with the definite and firm
conviction” that the Tax Court made a mistake. United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). And the parties
agree that we review the Tax Court’s denial of innocent
spouse relief under § 6015(f) for abuse of discretion. See Jacob‐
sen v. Comm’r, 950 F.3d 414, 419 (7th Cir. 2020) (declining to
decide the appropriate standard of review for the denial of
equitable relief under § 6015(f)).
B
For the 2003 tax year, the Tax Court concluded that res ju‐
dicata principles barred Frances from innocent spouse relief.
Congress permits innocent spouse relief only if the petition‐
ing taxpayer has not “participated meaningfully in [the] prior
proceeding.” 26 U.S.C. § 6015(g)(2). “In this way,” we previ‐
ously explained, “Congress has implemented a variation of
res judicata applicable to claims for innocent spouse relief pur‐
sued after a prior proceeding has reached finality and re‐
solved a taxpayer’s liability.” Rogers 2018, 908 F.3d at 1096.
Though the Internal Revenue Code does not delineate
what constitutes “meaningful participation,” courts look to
the totality of circumstances to measure the extent of a tax‐
payer’s involvement and engagement in the prior proceeding.
See id. (citing Haag v. Shulman, 683 F.3d 26, 31 (1st Cir. 2012)).
Whether Frances meaningfully participated in the 2010 Tax
Court trial regarding her and John’s tax liability for 2003 is a
question of fact, which we review for clear error. See id. at
1096 (citing Freda v. Comm’r, 656 F.3d 570, 573 (7th Cir. 2011)).
8 Nos. 20‐2789, et al.
We see no clear error in the Tax Court’s finding that
Frances meaningfully participated in the tax deficiency trial
for the 2003 tax year, in part because she was represented by
counsel (her husband John), attended the entire trial, and sat
at the table reserved for petitioners and their counsel. Nor can
we overlook that Frances—herself the holder of a law degree
and an M.B.A.—is highly educated, a fact that adds to the Tax
Court’s finding that she understood the proceedings and the
implications of the court’s decision. We also see no clear error
in the Tax Court’s discrediting of Frances’s claim that she had
no knowledge of her husband’s business activities or the tax
shelter he promoted.
In the end, nothing materially distinguishes Frances’s ar‐
guments today from those she made to us three years ago—
when we affirmed the Tax Court’s conclusion that
§ 6015(g)(2)’s version of res judicata barred Frances from seek‐
ing innocent spouse relief for the 2004 tax year. See Rogers
2018, 908 F.3d 1094. We therefore affirm the Tax Court’s deci‐
sion that Frances cannot seek innocent spouse relief for the
2003 tax year.
C
All of this brings us to the 2005 to 2007 and 2009 to 2012
tax years. In denying Frances innocent spouse relief under
§ 6015(b) and (f), the Tax Court applied the correct standard,
with the possible exception of one factual error in its 2018
opinion regarding the couple’s lavish lifestyle. But we are cer‐
tain that any error was harmless to the ultimate outcome, and
the rest of the Tax Court’s analysis remains sound.
The only two elements from § 6015(b) at issue are the
knowledge and equity prongs. As for the former, the Tax
Nos. 20‐2789, et al. 9
Court first considered whether Frances knew or had reason to
know that there was an understatement on the couple’s joint
tax returns. When an understatement is a result of unreported
income, the test for knowledge is “not knowledge of the tax
consequences of a transaction but rather knowledge of the
transaction itself.” Resser, 74 F.3d at 1535 (quoting Quinn v.
Comm’r, 524 F.2d 617, 626 (7th Cir. 1975)). But to the extent the
understatement comes from improper deductions or credits,
Resser establishes a “reasonably prudent person” test, under
which a spouse has “reason to know” if a reasonably prudent
person under the circumstances “could be expected to know,
at the time of signing the return, that the tax return contained
a substantial understatement.” Id. at 1536 (collecting cases).
This standard also imposes a “duty of inquiry” on the party
claiming innocent spouse relief. Id. at 1541.
Under the reasonably prudent person test, Resser identi‐
fied four factors informing whether the spouse has reason to
know of the understatement: (1) the spouse’s level of educa‐
tion, (2) the spouse’s involvement in the family’s financial and
business activities, (3) the presence of unusual or lavish ex‐
penses beyond the family’s norm, and (4) the culpable
spouse’s evasiveness or deceitfulness about the family’s fi‐
nances. Id. at 1536. No single factor controls; rather, the Tax
Court as the trier of fact had to consider the “interplay or bal‐
ance of the factors.” Id.
1. Level of Education
The Tax Court appropriately relied on and indeed empha‐
sized Frances’s extensive education in finding her argu‐
ment—that she had no reason to know of the tax understate‐
ments—not credible. Frances holds a master’s degree in bio‐
chemistry, a law degree, an M.B.A., and a doctorate in
10 Nos. 20‐2789, et al.
education. The Tax Court saw all of her higher education—
particularly the tax courses Frances took in law school—as
undercutting the credibility of her argument that she was not
capable of understanding complex financial, accounting, and
tax concepts. We see no clear error in the Tax Court finding
that this factor weighed against innocent spouse relief.
2. Involvement in the Family’s Business and Financial Activi‐
ties
Nor did the Tax Court clearly err in discrediting Frances’s
claims that she had no knowledge or involvement in her hus‐
band’s businesses or law practice. To the contrary, the record
showed that Frances reviewed the couple’s joint tax returns
each year with John and asked him follow‐up questions. For
a time, she also assisted in managing her husband’s law firm,
Rogers & Associates, while he sought treatment for alcohol‐
ism in 2009. During that time, she fired the office manager,
maintained accounting records, endorsed and deposited
checks, and paid expenses. On this evidence, the Tax Court
was unwilling to believe that Frances lacked knowledge, or at
least a high level of awareness, of her husband’s financial af‐
fairs.
There is more too. Frances inherited 31 acres of undevel‐
oped land in Orland Park, Illinois, and in 2004 she partnered
with her husband and an adjacent property owner to develop
the property into a residential subdivision called Sterling
Ridge. Frances was actively involved in the subdivision’s de‐
velopment, including by participating in its design and layout
and assisting with setting sale terms and prices for the lots. To
facilitate the project, she formed Sterling Ridge, Inc., an S‐cor‐
poration, and the Tax Court did not clearly err in finding that
Frances knew that John used the new enterprise, among other
Nos. 20‐2789, et al. 11
entities, to invest and participate in the Sugarloaf tax shelter
schemes. What is more, Frances traveled to Brazil with John
and attended Sugarloaf Fund–related meetings, and she testi‐
fied to having understood the basics of the Brazilian receiva‐
bles transactions at the heart of the tax scheme.
The Tax Court also found that Frances knew, or had every
reason to know, that Sterling Ridge sold at meaningful profits
plots of land in the neighborhood worth millions but reported
losses of over $3.2 million and claimed a $4 million deduction
from the Sugarloaf tax shelter. In the end, the Tax Court de‐
termined that these facts, too, weighed against Frances’s claim
for innocent spouse relief. We cannot call the findings clearly
erroneous.
3. Standard of Living
The Tax Court took differing approaches in its 2018 and
2020 decisions on this third factor. In its 2018 decision, the Tax
Court found that Frances maintained a high standard of liv‐
ing, and that her extensive travel, purchase of luxury vehicles,
and membership at social clubs cut against the granting of in‐
nocent spouse relief. This finding may well have reflected
clear error, however, because the Tax Court did not—as Resser
instructs—consider whether these expenses reflected a “sub‐
stantial unexplained increase in [her] lifestyle.” 74 F.3d at
1540. By our view of the record, the Rogerses’ standard of liv‐
ing remained consistent during the relevant years, so this fac‐
tor does not, contrary to the Tax Court’s 2018 decision, cut
against relief.
But any error here was harmless, in large part because
when the Tax Court course corrected in its 2020 opinion, it
reached the same conclusion: innocent spouse relief was not
12 Nos. 20‐2789, et al.
warranted under the circumstances. For the 2010 to 2012 tax
years, the Tax Court explained that the Rogerses’ occasional
travel for John’s work and legal conferences, coupled with
their providing significant funds to their adult son, did not
reflect an extravagant lifestyle. Even though that finding did
not weigh against innocent spouse relief, the other factors,
taken together, supported a finding that Frances knew or had
reason to know of the tax understatements for the years in
question.
4. Evasiveness or Deceitfulness about Family Finances
Lastly, the Tax Court did not clearly err when it concluded
that nothing in the record supported a finding that John tried
to deceive or hide anything from Frances. The record sup‐
ports that Frances had access to the family’s financial infor‐
mation and reviewed the tax returns prior to their being filed.
As the Tax Court observed in its 2018 opinion, nothing sug‐
gests that John concealed any financial dealings or bank ac‐
counts from Frances, and she had access to the couple’s finan‐
cial information.
After considering all four factors pertinent to the reasona‐
bly prudent person test, we are left confident that the Tax
Court did not clearly err in finding that Frances knew or had
reason to know of the tax deficiencies for the relevant tax
years.
Recall that all five factors in § 6015(b) must be met to war‐
rant innocent spouse relief. For the sake of completeness, the
Tax Court also considered the equity prong in § 6015(b)(1)(D),
ultimately concluding that there would be no overarching un‐
fairness in holding Frances jointly and severally liable for the
tax liability resulting from her and her husband’s
Nos. 20‐2789, et al. 13
underreporting. In doing so, the Tax Court looked to the ap‐
plicable Treasury Regulation for guidance. One factor the
Regulation makes relevant to the equity inquiry is whether
the requesting spouse significantly benefitted, either directly
or indirectly, from the understatement. See 26 C.F.R. § 1.6015‐
2(d).
We see no error in the Tax Court’s conclusion that equity
did not weigh in Frances’s favor. The Tax Court pointed to the
fact that Frances knew the couple had earned approximately
$13 million from the Sterling Ridge subdivision sales, and that
John had a salary of $500,000 for 2005 through 2007, yet paid
little to no income tax. And she enjoyed a comfortable lifestyle
throughout the entirety of the time the couple paid little in
income taxes.
D
Alternatively, a spouse who does not quality for relief un‐
der § 6015(b) may succeed under § 6015(f) if it would be “in‐
equitable” to hold her liable for any deficiency after taking all
the facts and circumstances into account. The same reasons
that inform our analysis of the equitable prong of § 6015(b)
guide our determination here. Having taken our own fresh
look at the record, we conclude that the Tax Court did not
abuse its discretion in denying Frances relief under this catch‐
all equity route.
E
One additional point warrants mentioning. Although
Resser outlines the legal framework within which we operate
and involved a situation where the Tax Court erred in deny‐
ing innocent spouse relief, Frances’s situation is distinguisha‐
ble from the circumstances presented by Melinda Resser. For
14 Nos. 20‐2789, et al.
starters, Mrs. Resser signed her tax returns without ever re‐
viewing them—in stark contrast to Frances’s admission that
she reviewed her tax returns and asked questions of her hus‐
band. See Resser, 74 F.3d at 1535. Even more, Mrs. Resser
merely paid for household expenses and had no involvement
in her husband’s trading business or his investments. See id.
at 1537. By contrast, Frances—a lawyer by training who also
had an M.B.A.—managed the day‐to‐day operations of her
husband’s law firm for about a year and was substantially in‐
volved in the Sterling Ridge real estate development. We
highlight these differences to underscore that Resser may sup‐
ply the operative analytical framework, but it does not man‐
date a reversal of the Tax Court’s opinions in this appeal.
III
We conclude by addressing Frances’s final argument that,
at the very least, the Tax Court abused its discretion by deny‐
ing her a new trial for the tax years 2003, 2005 to 2007, and
2009. See Estate of Kraus v. Comm’r, 875 F.2d 597, 602 (7th Cir.
1989). The Tax Court may grant a motion for a new trial for
any of the reasons a district court may do so under Federal
Rule of Civil Procedure 59(a)(1). See Tax Ct. R. 161; Fed. R.
Civ. P. 59(a)(1); see also Kraus, 875 F.2d at 602 (explaining de‐
cisions interpreting Rule 59(a)(1) are authoritative for motions
under Tax Rule 161).
Frances based her request for a new trial on what she saw
as newly discovered evidence—the nine witnesses who testi‐
fied on her behalf at the later trial for the 2010 to 2012 tax
years. But the fact that the Tax Court denied Frances innocent
spouse relief after both trials and for all the tax years—with
and without the nine witnesses—makes clear that the addi‐
tional witnesses did not sway the Tax Court. In short, we are
Nos. 20‐2789, et al. 15
confident that the Tax Court did not abuse its discretion in
denying the motion for a new trial, because the newly discov‐
ered evidence would not have produced a different result for
tax years 2003, 2005 to 2007, or 2009.
Frances also underscores that the reason these nine wit‐
nesses were not introduced at the first trial was because John
Rogers’s representation of her amounted to a conflict of inter‐
est. As she puts it, John refused to call witnesses to develop
her innocent spouse claim, in part to save himself from em‐
barrassment. But Frances previously gave testimony and rep‐
resented in an affidavit filed in the Tax Court that, after stud‐
ying the Model Rules of Professional Conduct and the Com‐
missioner’s motion to disqualify John as her attorney, she con‐
cluded there was no conflict created by her husband’s repre‐
sentation of her during the trial for the 2003, 2005 to 2007, and
2009 tax years. On this record, the alleged conflict is not a suf‐
ficient reason to grant a new trial.
* * *
We close by commending the Tax Court for its patient, de‐
tailed, and thorough analysis each time around. In affirming
the Tax Court’s opinions, however, we are not oblivious to the
marital challenges Frances has suffered for over a decade that
she describes at some length in her briefs. Though we are
sympathetic to Frances’s situation, the challenges she has en‐
dured are not, in and of themselves, sufficient to support in‐
nocent spouse relief. Rather, our analysis comes by applying
the controlling statutory requirements and additional guid‐
ance from Resser, and seeing no clear error in either Tax Court
opinion, we AFFIRM.