agree and stipulate that the following facts would have been established beyond a reasonable doubt at a trial in this matter: . . . after Mirando's release from the custody of the Bureau of Prisons, the IRS assessed tax, interest and penalties for Mirando's taxes due for the 1995 and 1996 tax years as well as for unpaid liabilities for the 2000 and 2004 tax years. As of June 29, 2007, the total tax liability, including interest and penalties, amounted to $448,776.13.The taxpayer paid and sued for refund.
As I note in the comments below, there was no basis in the normal judicial doctrines of res judicata [claim preclusion] and collateral estoppel [issue preclusion] to prevent the taxpayer from asserting that the tax was less than stipulated in the plea agreement. And, apparently this plea agreement was not specific that it was intended to contractually bind the taxpayer to the amounts -- even as minimum amounts -- in any subsequent civil tax case. So something else would have to apply if the taxpayer were going to be bound.
The Court applied judicial estoppel [issue preclusion]. Here is the reasoning (footnotes omitted):
The Court finds judicial estoppel prevents Plaintiff Mirando from bringing his refund claim. First, Mirando's position that he is entitled to a refund for overpaid taxes for the years 1995, 1996, and 2000 is directly contrary to his plea agreement in his 2007 criminal case. Recall Mirando's 2007 plea agreement states that the parties:
agree and stipulate that the following facts would have been established beyond a reasonable doubt at a trial in this matter: . . . after Mirando's release from the custody of the Bureau of Prisons, the IRS assessed tax, interest and penalties for Mirando's taxes due for the 1995 and 1996 tax years as well as for unpaid liabilities for the 2000 and 2004 tax years. As of June 29, 2007, the total tax liability, including interest and penalties, amounted to $448,776.13.
Because Mirando initialed the page on which the total tax liability was determined and signed the entire document, Mirando specifically agreed he owed $448,776.13. Mirando cannot now dispute these figures and demand a refund from the IRS after the court accepted his plea agreement.
Moreover if Mirando was allowed to proceed in this action, he would gain an unfair advantage. By pleading guilty to tax evasion and specifically agreeing to a total tax liability of $448,776.13, Mirando avoided the possibility of a longer sentence and the United States agreed not to prosecute Mirando's ex-wife or two children.37 After obtaining this benefit from the United States, Mirando cannot turn around and sue the United States for a refund.
Plaintiff Mirando relies on United States v. Hammon [277 F. App'x 560 (6th Cir. 2008)] for its position that his refund claim is not barred by estoppel. In Hammon, the Sixth Circuit held that the defendant was not collaterally or judicially estopped from denying the accuracy of the government's assessments despite pleading guilty to tax evasion and agreeing to pay $2.39 million in restitution. However, the present case can be distinguished from Hammon. In Hammon, the plea agreement only stipulated that the defendant willfully attempted to evade taxes assessed by the government in "the amount of approximately $2.39 million." Since the plea agreement was ambiguous as to whether the defendant admitted that the $2.39 million assessment was correct, the defendant was not estopped from challenging the accuracy of the tax assessment. In contrast, Plaintiff Mirando specifically agreed in his 2007 plea agreement that "beyond a reasonable doubt ... [a]s of June 29, 2007, the total tax liability, including interest and penalties, amounted to $448,776.13." Consequently, Hammon is not controlling, and judicial estoppel prevents Mirando from bringing his refund claim.
For the reasons above, the Court GRANTS Defendant United States' motion to amend and GRANTS Defendant United States' motion for summary judgment. The Court DISMISSES this action. Therefore, the Court DENIES Plaintiff Mirando's motion for summary judgment.
IT IS SO ORDEREDJAT Comments:
1. This seems to backdoor a form of estoppel that goes beyond concepts of collateral estoppel and res judicata that are the usual forms of preclusion with respect to prior litigation. Based on my understanding of those doctrines, a taxpayer is normally not precluded by tax convictions except that, under collateral estoppel, a taxpayer is precluded from denying civil fraud as to some portion of his civil tax liability. Since the tax evasion conviction does not require evasion as to any specific amount -- i.e., conviction for evasion just requires evasion as to some amount or some significant amount -- the conviction is not estoppel as to the precise amount and that is open for play in any subsequent civil proceeding. It is true that the conviction for evasion will operate as estoppel to establish that there was some amount of tax due and that it is attributable to fraud in order to shift the burden to the taxpayer under Section 6663 to show what portion is not attributable to fraud. But the amount of tax due and even the portion of the tax due attributable to fraud is not subject to collateral estoppel by virtue of the tax evasion conviction.
2. So, the question is whether estoppel can nevertheless applie via the concept of judicial estoppel. The Court cites no specific authority for that application of the doctrine of judicial estoppel, but rather reasons from the general concept of the doctrine of judicial estoppel to its application to the stipulated tax liability. In the absence of any authority, it is hard to address whether the court is correct in its application of judicial estoppel.
3. The case does alert practitioners to be careful what they negotiate plea agreements because, even without specific language in the plea that the taxpayer defendant is making binding stipulations that apply even in a subsequent civil context, the taxpayer defendant could be estopped by judicial estoppel. For example, it is usually the case that a plea agreement will deal with sentencing factors. The relevant sentencing factor here is the tax loss -- the amount of tax that was the object of the offense. The plea agreement in tax crimes cases -- whether involving a conviction for evasion or the panoply of other potential tax crimes -- will usually stipulate the tax loss and the Court will ultimately make its required Guidelines calculations on the basis of the stipulated amount. It is clear that, if the Court simply made the tax loss determination independent of the parties' stipulations, that determination would not be collateral estoppel in a subsequent civil proceeding. But, the suggestion of this Court is that, even if not collateral estoppel, it can be judicial estoppel where the parties stipulated as to the amount. And, the holding, if correct, would not be limited to conviction for tax evasion. Any tax crimes case where the parties stipulated the tax loss could be subject to judicial estoppel.
4. As I have noted before these types of stipulations in plea agreements are usually as to the criminal figures or the tax loss numbers which may be less than the actual civil tax liability the taxpayer owes. Thus, they would usually not be preclusive under any estoppel doctrine as to anything except the minimum tax due.
5. If the taxpayer stipulates that the amount in the plea agreement is the amount that was the object of the crime, it would seem that the estoppel would apply to establish the minimal amount subject to the civil fraud penalty. Under Section 6663's burden shifting rules some additional amount of the tax would then be in play for the civil fraud penalty if the IRS asserts it and the taxpayer is unable to show that it is not attributable to fraud. See Section 6663, here.
6. Also, such plea agreement stipulations often are as to the restitution amount. Under the revisions to the Code to permit immediate assessment of restitution amounts, the defendant will be precluded from contesting liability for those amounts. Note, consistent with the foregoing discussion, that the restitution will often be as to the principal amount of the tax liability rather than as to any penalty that may apply. The IRS will usually want the civil fraud penalty and could invoke the burden shifting rules notes above.
For related blogs, see
- New Statute for Civil Effect of Restitution in Tax Cases (Federal Tax Crimes Blog 2/11/11), here.
- What Can Be Done If Tax Restitution Exceeds the Tax Due (Federal Tax Crimes Blog 9/2/13), here.
- Tax Restitution and Doubt As to Amount (Federal Tax Crimes Blog 7/10/13), here.
- Eight Circuit Denies Claim for Restitution Reduction for Unconvicted Wife's Alleged Share of Tax Liability (Federal Tax Crimes Blog 5/8/13), here.