Dennis Harker v. United States ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1326
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In re: Dennis Harker, *
*
Debtor, *
------------------------- Appeal from the United States
Bankruptcy Appellant Panel
Dennis Harker, *
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Appellant, *
*
v. *
*
United States of America (Acting *
through the Internal Revenue Service), *
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Appellee. *
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Submitted: December 17, 2003
Filed: February 10, 2004
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Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
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HEANEY, Circuit Judge.
This is a tax evasion case which has been in the courts for over a decade. The
facts have been discussed several times below1 and are summarized here for the
purposes of this appeal.
In 1994, the United States Tax Court determined that Dennis Harker was
responsible for certain tax deficiencies and fraud penalties for the years 1985-87.
Harker v. Comm’r, 68 T.C.M. 1272 (1994), aff’d, 82 F.3d 806 (8th Cir. 1996).
On May 1, 1995, the Tax Court entered a decision stating the amount of Harker’s tax
deficiencies. On May 16, 1995, Harker filed a Chapter 13 petition in bankruptcy
court. The bankruptcy court determined that the petition was filed in bad faith and
ordered Harker to convert the case to a Chapter 7 proceeding within 20 days, or an
automatic dismissal would be entered. In re Harker, No. 95-1417-CH, 1996 WL
905910 (Bankr. S.D. Iowa June 14, 1996), aff’d, 112 F.3d 513 (8th Cir. 1997)
(unpublished table opinion). Harker failed to convert the case and his Chapter 13
bankruptcy case was dismissed.
On July 12, 1996, the IRS recorded notices of federal tax liens with respect to
Harker’s 1985-87 liabilities totaling $1,073,298.20, and announced its intent to sell
two of Harker’s properties.2 Harker filed a motion requesting that the court find the
filing of the tax liens void as a violation of the automatic stay issued in the Chapter
13 case. The bankruptcy court denied the motion, holding that the automatic stay
terminated when Harker failed to convert his Chapter 13 case to a Chapter 7 case
within the 20-day period in accordance with its prior order.
1
See, e.g., In re Harker, 286 B.R. 84 (B.A.P. 8th Cir. 2002); In re Harker, No.
97-4088-CH, 2002 WL 1058108 (Bankr. S.D. Iowa April 15, 2002).
2
When the properties were finally sold, they yielded total proceeds of
$283,578.16, which the IRS applied to Harker’s 1987 tax liabilities.
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On September 8, 1997, Harker filed a Chapter 7 bankruptcy case and on
September 23, 1997, he filed a complaint commencing this adversary proceeding to
determine the dischargeability of his 1985-87 tax liabilities under the bankruptcy
code. The bankruptcy court determined that the 1985 and 1986 tax, penalties, and
interest, and the 1987 liabilities, which did not include tax, were dischargeable. The
United States appealed and the district court affirmed the bankruptcy court’s
determination with respect to the penalties for 1985-87 and the taxes for 1987, but
reversed the bankruptcy court’s conclusion as to the taxes and interest for 1985 and
1986. The district court then remanded the case to the bankruptcy court to determine
the amount of Harker’s nondischargeable taxes and interest.
On remand, the bankruptcy court held a hearing on the issue of the amount of
the nondischargeable liabilities. The United States moved to supplement the record
with a declaration by IRS Revenue Officer Howard Hoy. Harker objected to the
motion to supplement the record, complaining that he would be denied the
opportunity to cross examine Hoy if the declaration was filed. The bankruptcy court
did not allow the filing of the Hoy declaration, but reopened the record for additional
oral testimony from Hoy. At the close of evidence, the bankruptcy court entered an
order determining the amount of Harker’s tax, interest, and other nondischargeable
liabilities to be $76,819.54 for 1985 and $532,761.96 for 1986. In re Harker, 2002
WL 1058108 at *8. The bankruptcy appellate panel (BAP) affirmed the bankruptcy
court’s order, In re Harker, 286 B.R. 84 (B.A.P. 8th Cir. 2002), and this appeal
followed. Harker now argues that the bankruptcy court: (1) erred in finding that the
government carried its burden of proof in showing that Harker owed any tax or
interest for the years 1985 and 1986; (2) erred in holding that the tax lien on his
property was valid and that the payments credited from the sale were involuntary; (3)
abused its discretion in reopening the record to allow for additional testimony from
Hoy; and (4) erred in refusing to exercise its equitable powers in favor of Harker. We
reject these arguments and now affirm as well.
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ANALYSIS
Like the BAP, our court reviews the bankruptcy court’s factual findings for
clear error and its conclusions of law de novo. In re Vote, 276 F.3d 1024, 1026 (8th
Cir. 2002).
On appeal, Harker first argues that the bankruptcy court erred in finding that
the government carried its burden of proof in showing that Harker owed any tax or
interest for the years 1985 and 1986. According to Harker, the court erred in finding
that the certified tax assessments constituted prima facie evidence of Harker’s tax
liability. Harker argues that such a “presumption of correctness” was inappropriate
in this case alleging that the tax assessed by the Tax Court does not match Hoy’s
testimony as to the amount of tax owed. This difference, suggests Harker, makes the
assessment inaccurate on its face; thus the government did not meet its burden of
proof, nor did the burden shift to Harker.
We disagree. “Tax assessments made by the IRS are presumed correct and the
taxpayer bears the burden of proving, by a preponderance of the evidence, that the
assessment is erroneous.” N.D. State Univ. v. United States, 255 F.3d 599, 603 (8th
Cir. 2001). Harker did not present any affirmative testimony or evidence regarding
the correct amount of the 1985 and 1986 liabilities. Instead, Harker merely asserts
that the tax assessed by the Tax Court does not match the tax presented in Hoy’s
testimony. After reviewing the record, we fail to see this discrepancy and such a
blanket assertion, without more, does not rise to the level necessary to dispute the
“presumption of correctness.” Furthermore, pursuant to 11 U.S.C. § 505(a)(2)(A),
a bankruptcy court may not determine “the amount or legality of a tax . . . if such
amount or legality was contested before and adjudicated by a judicial or
administrative tribunal of competent jurisdiction.” Accordingly, the bankruptcy court
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did not have jurisdiction to redetermine Harker’s tax liability which was established
in a prior Tax Court decision.3
Harker next argues that the bankruptcy court erred in finding that the tax lien
on his property was valid. According to Harker, since the lien on his property was
filed prior to the dismissal of his Chapter 13 proceeding, the tax lien was not valid
because liens cannot attach to property until it is shown that the taxes assessed will
not be discharged in a bankruptcy proceeding. Harker further argues that since the
lien was not effective, no sale could be undertaken by the IRS, and any payment
credited from the sale must be considered voluntary and attributed to principal, not
interest, as the IRS did.
The district court remanded this case to the bankruptcy court with the specific
mandate of determining the amount of Harker’s nondischargeable tax liabilities.
Arguments about the validity of a lien, therefore, are outside the scope of the remand
order and this appeal. Thornton v. Carter, 109 F.2d 316, 319-20 (8th Cir. 1940)
(holding that a lower court is bound by the decree of the appellate court and “can only
enter a judgment or decree in strict compliance with the [appellate court’s] mandate”).
As stated by the BAP, the bankruptcy court had no authority to decide any issue that
did not “directly influence the calculation of taxes and interest due.” (App. at 267.)
In addition, because the proceeds from the sale of Harker’s properties were
obtained through a legal proceeding in which the government sought to collect
delinquent taxes, they are considered involuntary payments. United States v.
Pepperman, 976 F.2d 123, 127 (3d Cir. 1992). The IRS may apply involuntary
3
This same analysis applies to Harker’s additional argument that he was not
properly credited for certain payments made prior to the May 1, 1995 Tax Court
decision. The bankruptcy court and the BAP accurately concluded that Harker was
precluded by the prior Tax Court decision from challenging the application of these
payments.
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payments to whichever liability of the taxpayer it chooses. In re Jehan-Das, Inc., 925
F.2d 237, 238 (8th Cir. 1991).
Harker next argues that the bankruptcy court abused its discretion in reopening
the record to allow for the testimony of Hoy nearly a year after the record was closed.
“A decision to reopen the record is within the sound discretion of the trial court.” In
re Grimm, 168 B.R. 102, 106 (Bankr. E.D. Va. 1994). Here, the bankruptcy court
found that the “current state of the record” was deficient to determine Harker’s
nondischargeable tax liability as mandated by the district court. (App. at 283.)
Harker had at least three months to prepare for Hoy’s testimony and was given the
opportunity to cross-examine Hoy. Based on this record, we find no abuse of
discretion on behalf of the bankruptcy court in reopening the record.
Finally, Harker asks the court to use it equitable powers to bring an end to his
obligations to the IRS. This we refuse to do.
CONCLUSION
Since filing the briefs in this case, the United States has notified this court of
an error in the amounts assessed against Harker in favor of the United States.
Therefore, although we affirm the bankruptcy court’s findings in their entirety, we
remand this case back to the bankruptcy court for the limited purpose of entering a
corrected judgment, in accordance with the letter from the United States, reducing the
amount of Harker’s nondischargeable liabilities to $65,748.16 for 1985 and
$466,006.15 for 1986.
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