JEFFERSON SMURFIT CORPORATION, (U.S.) and Subsidiaries, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant., United States Court of Appeals, Eighth Circuit., 439 F.3d 448, No. 05-2466., Filed: March 6, 2006
JEFFERSON SMURFIT CORPORATION, (U.S.) and Subsidiaries, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
United States Court of Appeals, Eighth Circuit.
439 F.3d 448
Filed: March 6, 2006.
Submitted: Jan. 9, 2006.
Filed: March 6, 2006.
Gilbert Rothenberg, argued, Tax Divi╜sion, U.S. Dept. of Justice, Washington, DC (Richard Farber and Francesca U. Tamami, on the brief), for appellant.
Thomas V.M. Linguanti, argued, Chica╜go, IL (Gregg D. Lemein, Robert S. Wal╜ton and Gregory S. Lyman, on the brief), for appellee.
Before MURPHY, FAGG, and SMITH, Circuit Judges.
MURPHY, Circuit Judge.
Jefferson Smurfit Corporation (Smurfit) brought this refund action against the United States claiming that a deficiency assessment by the Internal Revenue Ser╜vice (IRS) for tax year 1989 was barred by res judicata. In its 1989 tax returns Smurfit had claimed net operating losses which it sought to carry back to its 1987 tax year in order to obtain a refund for that year. During its examination of Smurfit's 1989 returns, the IRS discovered that the amount which Smurfit sought to carry back had been miscalculated and issued reports notifying Smurfit of the re╜sulting deficiency. Smurfit did not contest that the amount it had carried back for its 1989 losses and credits had been miscalcu╜lated. It paid the assessed amount and now seeks a refund, arguing that a final decision of the Tax Court for its 1987 tax year bars the deficiency assessment. Both parties moved for summary judgment in the district court. Smurfit's motion was granted, and the IRS appeals. We re╜verse.
A corporate reorganization caused Smurfit to file two tax returns for 1989. It claimed $5,812,300 in foreign tax credits in the first return and $68,255,200 net operat╜ing losses in the second. Smurfit also filed an IRS Form 1139 (Corporate Application for Tentative Refund) under 26 U.S.C. ╖ 6411, seeking to carry back the $68,255,200 loss and the $5,812,300 in cred╜its to its 1987 tax year in order to produce a refund for that year. The day after Smurfit filed its Form 1139, the IRS began to examine its 1987 and 1988 tax filings. In the course of the examination, the IRS employed economists to determine wheth╜er the foreign tax credits had been calcu╜lated correctly.
Smurfit filed a Tax Court petition in 1993 to resolve its tax liabilities for 1987 and 1988, and in January 1999 the IRS and Smurfit agreed to a stipulated settlement. On January 22, 1999, the Tax Court issued its brief decision based on the stipulation of the parties which simply ordered: "That there is no deficiency, or overpayment, in income tax for 1987; and that there is a deficiency in income tax for 1988 in the amount of $1,878,529.00." The Tax Court decision became final on April 22, 1999.
Before the Tax Court filed its decision applying to the 1987 tax year, the IRS issued Notices of Proposed Adjustments disputing the calculations of Smurfit's car╜riedback losses and credits. Sometime af╜ter Smurfit had filed its petition in the Tax Court relating to its 1987 and 1988 tax years, the same IRS examiner who had studied its liabilities for those years began examining its 1989 returns. The examiner discovered errors in Smurfit's calculation of its claimed foreign tax credits and net operating losses prior to entry of the Tax Court judgment. Two examination re╜ports relating to the 1989 tax years were released by the IRS on April 21, 1999, several months after the Tax Court's deci╜sion on Smurfit's 1987 and 1988 tax re╜turns and one day before it became final. Another examination report for 1989 is╜sued on May 6, 1999. The IRS reports stated that Smurfit had miscalculated its 1989 net operating losses and tax credits and that it owed an additional $4,137,036 plus interest for the 1987 tax year.
Smurfit paid the asserted deficiency in June 1999, and filed an administrative claim with the IRS for a refund of the $4,137,036 it had paid plus interest. It claimed that the Tax Court's decision on its 1987 and 1988 tax years precluded the IRS from seeking a deficiency payment for 1987 based on Smurfit's miscalculations of its net operating losses for 1989. After the IRS failed to act on the administrative claim within six months, Smurfit filed this refund action in the district court.
Both parties moved for summary judg╜ment. Smurfit did not argue that it had correctly calculated its 1989 tax credits or operating losses, but rather that res judi╜cata barred the IRS from seeking deficien╜cies for its 1987 tax year. The govern╜ment responded that the Internal Revenue Code allows it to assess deficiency pay╜ments for miscalculated net operating loss╜es intended by a taxpayer to be carried back to an earlier tax year, regardless of whether the Tax Court has issued a deci╜sion for that year. In addition the govern╜ment asserted a claim for equitable re╜coupment if Smurfit were to prevail in the district court, a claim which Smurfit did not contest. The Tax Court had deter╜mined that Smurfit owed a deficiency pay╜ment for tax year 1988, but the recalcula╜tions by the IRS showed that Smurfit would be due a tax benefit for that year if it were not barred by the final judgment rule. The government therefore argued that if reassessment of the carryback loss╜es for 1987 was barred by res judicata, its reassessment of Smurfit's 1988 tax year should be affected similarly. The district court granted summary judgment to Smurfit, as well as the government's re╜coupment request.
The United States appeals, arguing that the district court erred by granting sum╜mary judgment to Smurfit because Con╜gress has provided that the IRS may ex╜amine and assess deficiencies resulting from errors in carriedback net operating loss cases even after the Tax Court has issued a final decision for the carryback year. Smurfit contends, however, that un╜der Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 92 L.Ed. 898 (1948), the judicial adjudication of liabilities for a tax year acts as a bar to additional assess╜ments for that year. It claims that Con╜gress did not intend to abrogate the doc╜trine of claim preclusion for carriedback net operating losses. We review the dis╜trict court's grant of summary judgment de novo. Lund v. Hennepin Cty., 427 F.3d 1123, 1125 (8th Cir.2005).
Prior judgments can bar future litigation under two independent common law doctrines-issue preclusion and claim preclusion. Klipsch, Inc. v. WWR Tech╜nology, Inc., 127 F.3d 729, 733 (8th Cir. 1997). Issue preclusion bars parties from relitigating issues that were actually liti╜gated and necessary to the outcome of a prior judgment. McKenzie Engineering Co. v. NLRB, 373 F.3d 888, 891 (8th Cir. 2004). Smurfit concedes that the amount of the carriedback losses was not litigated in the Tax Court proceeding and that issue preclusion is inapplicable. Under the doc╜trine of claim preclusion or res judicata, a party is prohibited from asserting "a claim or defense in a later proceeding that should have been raised in an earlier pro╜ceeding" in which there has been a final judgment. Id . Smurfit contends that un╜der this doctrine the IRS is precluded from seeking a deficiency assessment for the 1989 tax year because it did not raise its claim in the Tax Court.
Claim preclusion is a common law doctrine which can be overridden by stat╜ute. See Iowa Network Services v. Qwest Corp. , 363 F.3d 683 (8th Cir.2004); Zack╜i m v. Commissioner of Internal Revenue, 887 F.2d 455 (3rd Cir.1989). Whether Congress intended for the IRS to assess deficiencies based on miscalculated carry╜back amounts even after the Tax Court has issued a final judgment for the carry╜back year is determined by examining the language, structure, and purpose of the statutory scheme. Jones v. Rath Packing Co. , 97 S.Ct. 1305, 430 U.S. 519, 525, 51 L.Ed.2d 604 (1977).
Under the tax code, the IRS is ordinari╜ly required to assert a deficiency in a return by issuing the taxpayer a notice of deficiency. 26 U.S.C. ╖ 6212(a). After re╜ceiving such a notice, the taxpayer can either pay the deficiency or file a petition in the Tax Court disputing that it owes the amount sought. 26 U.S.C. ╖ 6213. The taxpayer is not required to pay the tax until the decision of the Tax Court has become final. 26 U.S.C. ╖ 6213(a). Tax╜payers are unable to file a petition in the Tax Court unless they receive a notice of deficiency for a particular tax year, Mid╜land Mortgage Co. v. Commissioner, 73 T.C. 902, 907, 1980 WL 4567 (1980).
Although the IRS is generally barred from determining additional deficiencies for a tax year for which the taxpayer has filed a petition in the Tax Court, 26 U.S.C. ╖ 6212(c)(1), Congress has created exceptions to enable the assessment of other deficiencies even after one notice of deficiency has issued. Section 6212(c)(1) contains both the general rule against suc╜cessive deficiencies and the exceptional circumstances which do permit them:
If the Secretary has mailed to the tax╜payer a notice of deficiency . . . and the taxpayer files a petition with the Tax Court . . . the Secretary shall have no right to determine any additional defi╜ciency of income tax for the same tax╜able year . . . with respect to any act (or failure to act) to which such petition relates, except in the case of fraud, and except as provided in section 6214(a) (relating to assertion of greater deficien╜cies before the Tax Court), in section 6213(b)(1) (relating to mathematical or clerical errors), in section 6851 or 6852 (relating to termination assessments), or in section 6861(c) (relating to the making of jeopardy assessments).
26 U.S.C. ╖ 6212(c)(1) (emphasis added).
Section 6212(c)(1) thus both permits ad╜ditional notices of deficiency and lists the limited circumstances where they are al╜lowed, explicitly including mathematical or clerical errors "as provided in . . . section 6213(b)(1)." 26 U.S.C. ╖ 6212(c)(1). The referenced provision for mathematical and clerical errors (╖ 6213(b)(1)) in turn states that a notice of assessment for such errors shall not be considered a notice of deficien╜cy permitting a Tax Court petition. 26 U.S.C. ╖ 6213(b)(1). A related section of the statute addresses "tentative carryback or refund adjustments". 26 U.S.C. ╖ 6213(b)(3). If it is determined that there has been an error in the carryback amount, the excess amount the taxpayer received because of the error may be as╜sessed "as a deficiency as if it were due to a mathematical or clerical error appearing on the return." Id. An assessment result╜ing from errors in a ╖ 6411 carryback application is treated "as if it were due to a mathematical or clerical error appearing on the return," 26 U.S.C. ╖ 6213(b)(3), and it is thereby excluded from the prohibition against successive notices of deficiency. 26 U.S.C. ╖ 6212(c)(1).
Assessments based on ╖ 6411 applica╜tions for tentative refunds due to carried╜back corporate losses are treated differ╜ently from ordinary returns. When a taxpayer submits a tentative ╖ 6411 appli╜cation to carry back losses, the IRS is to make a "limited examination" and act on it within 90 days. 26 U.S.C. ╖ 6411(b). After this 90 day period, however, the IRS can reexamine the claimed carryback losses and assess deficiencies based on an error in the amount carried back if the statute of limitations for the year in which the losses were incurred has not expired, 26 U.S.C. ╖ 6501(k) and (h), and without regard to whether the IRS has previously issued a notice of deficiency for the carryback year. 26 U.S.C. ╖╖ 6213(b)(1) and (3). Congress also ex╜pressly permits taxpayers to file ╖ 6411 tentative applications to carryback losses to a year for which the Tax Court has already entered a final decision. 26 U.S.C. ╖ 6511(d)(2)(A).
Neither party has cited any prece╜dent from this court interpreting the code sections relevant to the question whether Congress intended for an intervening final judgment by the Tax Court for the carry╜back year to bar the IRS from assessing a deficiency discovered during its examina╜tion of the year in which the losses were incurred. Both parties do address Zackim v. Commissioner, 887 F.2d 455 (3rd Cir. 1989), a case dealing with fraud-one of the other statutory exceptions to the rule against successive deficiency assessments.
In Zackim, the Third Circuit focused on 26 U.S.C. ╖ 6212(c)(1) in determining whether Congress intended Tax Court de╜cisions to bar additional assessments based on fraud if the IRS becomes aware of a taxpayer's fraudulent reporting before en╜try of a Tax Court judgment for the fraud╜ulent year. The taxpayer there argued on res judicata grounds that the Tax Court decision barred assessment of deficiencies based on fraud. Zackim, 887 at 458-459. The court disagreed. By excluding fraud from the general bar against successive deficiencies in 26 U.S.C. ╖ 6212(c)(1), "Congress dealt explicitly with the policy of finality, and plainly excepted claims of fraud from the general policy." Id . The IRS was able to assess the deficiency even though it had not delayed the Tax Court proceeding pending completion of its fraud investigation. Id.
In providing for exceptions to the rule against successive assessments after a Tax Court petition has been filed, Congress did not differentiate between assessments based on fraud and those based on errone╜ous ╖ 6411 applications. The rule against successive notices of deficiency applies " ex╜cept in the case of fraud, and except as provided . . . 6213(b)(1 ) (relating to mathe╜matical or clerical errors)." 26 U.S.C. ╖ 6212(c)(1) (emphasis added). Section 6213(b)(1) instructs that an assessment based on a mathematical or clerical error "shall not be considered as a notice of deficiency" and shall be excluded from the prohibition against successive deficiencies. Congress treated an assessment arising from a ╖ 6411 application "as if it were due to a mathematical or clerical error" under ╖ 6213(b)(1), excluding both from the rule against successive deficiencies. 26 U.S.C. ╖ 6213(b)(3). Like assessments based on fraud, Congress intended to ex╜clude assessments based on erroneous ╖ 6411 applications from the general policy of finality, Zackim, 887 at 458-459, and intended for the IRS to assess such defi╜ciencies even after the IRS has issued a final decision for the carryback year so long as they were not litigated before the Tax Court.
Consideration of the relevant statutory sections governing corporate applications for tentative refunds supports the conclu╜sion that Congress did not intend for a final Tax Court decision for the carryback year to bar the IRS from assessing a deficiency based on an erroneously carried back amount. Taxpayers are specifically permitted to apply for "tentative" refunds under 26 U.S.C. ╖ 6411, the section under which Smurfit filed its application. The word "tentative" is one of common under╜standing and is defined as something "made, done, [or] proposed . . . experimen╜tally or provisionally" or something "not definite or final". Webster's New World Dictionary (3d College ed.1988). More╜over, the IRS is permitted to assess defi╜ciencies based on erroneous ╖ 6411 appli╜cations even after the statute of limitations has expired for the carryback year, 26 U.S.C. ╖╖ 6501(h) and (k), and taxpayers are expressly permitted to carry back loss╜es in ╖ 6411 applications to years for which the Tax Court has entered a final decision. 26 U.S.C. ╖ 6511(d)(2)(A) and (B). By treating tentative applications for refunds under ╖ 6411 like fraud and ex╜cepting them from the prohibition against successive notices and as separate from the carryback year in all other respects, Congress indicated that it intended to per╜mit the IRS to assess deficiencies resulting from erroneous or miscalculated carried╜back amounts even after a final Tax Court decision for the carryback year.
Smurfit concedes that Zackim was cor╜rectly decided but argues that its holding should be limited to the fraud exception. It notes that Congress did not precede fraud by the words "as provided in" which introduce the other exceptions in ╖ 6212(c)(1) and that fraud is always ex╜empted from res judicata effects on judgments. Although fraud is normally an ex╜ception to res judicata, see Restatement (Second) of Judgments ╖ 26 cmt. j (1980), we cannot ignore any of the relevant statu╜tory provisions. Congress did not need to precede fraud with the words "as provided in" because fraud is not identified as an exception elsewhere in the code. In con╜trast, mathematical and clerical errors are specifically set out as exceptions to the successive deficiency rule in ╖ 6213(b)(1). The other exceptions in ╖ 6212(c)(1) relate to assessments which must be imposed before a final judgment. Section 6214 per╜mits the Tax Court to determine the cor╜rect amount of a deficiency even if it is greater than the amount stated in the notice of the IRS, ╖╖ 6851 and 6852 permit immediate "termination assessments" fol╜lowed by notices of deficiency which can then be contested in Tax Court, and ╖ 6861 permits the IRS to make a "jeopar╜dy assessment" before Tax Court proceed╜ings are completed if the amount assessed will be jeopardized by delay. 26 U.S.C. ╖ 6212(c)(1). In contrast, Congress does not require that assessments based on ╖ 6411 applications or on fraud be made before the Tax Court enters final judg╜ment.
Smurfit also relies on Bradley v. United States, 1996 WL 196682, 96-1 USTC P 50195 (D.Minn.1996), affirmed in an un╜published opinion without precedential val╜ue. See 106 F.3d 405 (8th Cir.1997) (per curiam) (8th Cir. R. 28A(i)). In Bradley, the district court barred the IRS from assessing a deficiency based on miscalcu╜lated carriedback losses where the Tax Court had entered a final decision for the carryback year. It sought to distinguish Zackim by concluding that the Third Cir╜cuit had only relied on the legislative histo╜ry, overlooking statements in the decision that "there simply is no warrant for going behind the plain language of 6212(c)" and that both "the statutory language and its legislative history are clear." Zackim, 887 at 459-60. Since Bradley did not examine all of the relevant sections of the statutes and failed to articulate its basis for treat╜ing assessments based on miscalculated ╖ 6411 returns differently from fraudulent returns, it is not persuasive.
We recognize in Tax Court proceedings that "[e]ach year is the origin of a new liability and of a separate cause of action," and res judicata binds parties "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." Commissioner v. Sunnen, 333 U.S. 591, 597-598, 68 S.Ct. 715, 92 L.Ed. 898 (1948). These broad res judica╜ta principles are not controlling here, how╜ever, because Congress has not indicated that unlitigated and miscalculated carried╜back losses should be considered part of the judgment for the carryback year. It enacted separate provisions for assessing deficiencies in ╖ 6411 applications, ex╜pressly permitting taxpayers to carry back to years for which the Tax Court has entered a final decision and allowing the IRS to assess such deficiencies even if the statute of limitations for the carryback year has expired. 26 U.S.C. ╖╖ 6501(k) and (h); 26 U.S.C. ╖ 6511(d)(2)(A).
Claim preclusion only bars a party from asserting "a claim or defense in a later proceeding that should have been raised in an earlier proceeding," McKenzie Engi╜neering Co., 373 F.3d at 891, because it arises from the "same nucleus of operative facts as the prior claim." Regions Bank v. J.R. Oil, Co., LLC, 387 F.3d 721, 732 (8th Cir.2004) (internal citations omitted), and Congress has provided that the IRS was not required to raise in a Tax Court pro╜ceeding a claim of deficiency arising from miscalculated or erroneous losses that are the subject of an application under ╖ 6411 to carry them back to an earlier tax year. The IRS might have asserted in the Tax Court that it maintained the right to exam╜ine the accuracy of the carriedback amount or sought to delay the proceedings until it finished its examination for the 1989 tax year, but Smurfit has not demonstrated that the government was required to take such steps to avoid a res judicata bar.
For these reasons we reverse the judg╜ment and remand the case to the district court for further proceedings consistent with this opinion.
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