United States Court of Appeals
Fifth Circuit
F I L E D
October 11, 2006
In the United States Court of Appeals
for the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 04-41594
RAYMOND W. BEALL; HAZEL A. BEALL,
Plaintiffs – Appellants,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
No. 6:00-CV-187
Before GARWOOD, PRADO and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Taxpayers are seeking abatement of interest pursuant to 26 U.S.C. § 6404(e), asserting
that delays and errors by the Internal Revenue Service constituted ministerial acts within the
meaning of section 6404(e) and resulted in the impairment of the taxpayers’ ability to defend
against adjustments to partnership items that caused additional tax liability, penalty and
interest for the individual taxpayers. The district court granted the United States’ Rule
12(b)(6)1 motion to dismiss for failure to state a claim. Because none of the errors or delays
1
FED. R. CIV. P. 12(b)(6).
of which the taxpayers complain were ministerial acts, we affirm the district court’s
judgment.
I
The taxpayers, Raymond W. Beall and his wife, seek abatement of interest for four
years, from March 1989 through April 1993. Their claims are governed by 26 U.S.C.
§ 6404(e) before its amendment in 1996. Section 6404(e) provided:
(e) ASSESSMENTS OF INTEREST ATTRIBUTABLE TO ERRORS AND
DELAYS BY INTERNAL REVENUE SERVICE.—
(1) IN GENERAL.—In the case of any assessment of interest
on—
(A) any deficiency attributable in whole or in part to
any error or delay by an officer or employee of the Internal
Revenue Service (acting in his official capacity) in performing
a ministerial act, or
(B) any payment of any tax described in section
6212(a) to the extent that any error or delay in such payment is
attributable to such officer or employee being erroneous or
dilatory in performing a ministerial act,
the Secretary may abate the assessment of all or any part of such
interest for any period. For purposes of the preceding sentence, an
error or delay shall be taken into account only if no significant aspect
of such error or delay can be attributed to the taxpayer involved, and
after the Internal Revenue Service has contacted the taxpayer in writing
with respect to such deficiency or payment.
(2) INTEREST ABATED WITH RESPECT TO ERRONEOUS REFUND
CHECK.—The Secretary shall abate the assessment of all interest
on any erroneous refund under section 6602 until the date
demand for repayment is made, unless—
(A) the taxpayer (or a related party) has in any way
caused such erroneous refund, or
(B) such erroneous refund exceeds $50,000.2
Beall and his wife were limited partners in Agri-Venture Associates and in Oasis Date
2
26 U.S.C. § 6404(e)(1988) (amended 1996).
2
Associates. The Bealls filed a joint federal income tax return for 1984, which reported losses
from these partnerships. The Bealls also filed an Application for Tentative Refund, which
carried back these losses from 1984 to 1981. The requested refund was made, but the IRS
subsequently selected the partnerships’ 1984 returns for administrative review as part of a
larger IRS investigation, which examined the 1984, 1985, and 1986 tax returns of
partnerships that shared a common general partner, AMCOR Capital Corp.
In March 1989, in connection with a grand jury investigation, the IRS entered the
general partner’s office and seized the partnerships’ books and records. The grand jury
proceedings remained ongoing for four years and were concluded without any indictments
or charges being brought or filed. During this time, the United States suspended the civil
examination and adjustment process. The IRS did not return the partnerships’ books and
records until 1993, and when the IRS did return them, some had been lost and the remainder
were in disarray. The Bealls’ claim for abatement of interest arises out of these events, and
they seek suspension of interest from the date when the referral to the criminal investigation
division was made until the books and records were returned in April 1993. Alternatively,
they seek abatement from March 1989 until April 1993. The Bealls assert that the IRS erred
or delayed in performing ministerial acts during this time by: (i) delaying issuance of a
criminal referral, (ii) delaying or suspending civil proceedings, (iii) conducting an erroneous
and unreasonable criminal investigation, (iv) improperly seizing the partnerships’ books and
records based on a flawed search warrant, (v) losing some of the partnerships’ books and
records, (vi) returning the partnerships’ books and records in disarray, and (vii) impairing
3
access to the partnerships’ books and records for four years.
In December 1996 the IRS sent proposals to the Bealls for resolving issues relating
to the partnerships. Several months thereafter, the Bealls and the IRS agreed to a settlement
relating to the partnerships. In June 1997 the IRS advised the Bealls in writing of
adjustments to their individual tax liability for 1981 and 1984 resulting from the settlements.
The IRS assessed additional taxes of $29,978 and a penalty and interest in the amount of
$67,525, which the Bealls paid.
In December 1997 the Bealls requested a refund of the additional taxes, penalty and
interest they paid as a result of the settlement. The IRS denied the request. In April 1999
the Bealls filed a supplemental claim for refund, claiming in part that interest should be
abated under 26 U.S.C. § 6404(e).
In March of 2000 the Bealls filed suit in district court regarding their December 1997
and April 1999 refund requests. The claim regarding the December 1997 request was
dismissed as barred by the statute of limitations, and the Bealls did not appeal that decision.
The claim regarding the April 1999 request asserted that interest should be abated under 26
U.S.C. § 6404(e).3
The district court granted a motion to dismiss filed by the United States, holding that
the court lacked jurisdiction to hear challenges to a denial of a request for abatement under
3
The April 1999 refund request also included a claim that a net interest rate of zero should
have applied under 26 U.S.C. § 6621(d). However, that claim was dismissed by the district court,
and the Bealls never appealed dismissal of that claim.
4
26 U.S.C. § 6404(e). This court reversed, holding that the district court had jurisdiction over
the matter, and remanded the case for further proceedings.4
On remand, the United States renewed its motion to dismiss or for summary judgment,
arguing that (1) all of the complained-of acts occurred before the IRS “contacted” the Bealls
“in writing” regarding a “deficiency” and therefore did not come within section 6404(e), and
(2) the IRS’s delays and errors were not “ministerial” and therefore could not provide a basis
for abatement. The district court held that some of the complained-of acts occurred before
the IRS contacted the Bealls and that the remaining acts were not “ministerial” and could not
provide a basis for abatement.5 Accordingly, the district court dismissed the Bealls’ claim,
and the Bealls have pursued this appeal.6 Because we conclude that none of the delays or
errors of which the Bealls complain were ministerial acts, we do not reach the question of
how 26 U.S.C. § 6404(e) should be construed with regard to when the IRS “contacted the
taxpayer in writing with respect to such deficiency or payment.”
II
Whether and when to issue a criminal referral is not a ministerial act. It requires the
exercise of some discretion as does conducting a criminal investigation and deciding how
long books and records are needed in conducting such an investigation. Similarly, whether
to suspend civil proceedings pending a criminal investigation requires the exercise of
4
Beall v. United States, 336 F.3d 419, 431 (5th Cir. 2003).
5
Beall v. United States, 335 F. Supp. 2d 743, 751, 753 (E.D. Tex. 2004).
6
Id. at 754.
5
discretion. In addition, the allegation that a flawed search warrant was used to seize the
partnerships’ books and records does not involve a ministerial act by the IRS. Absent
exigent circumstances, a magistrate must issue a warrant,7 and any flaw caused by the
magistrate was not attributable to the IRS. To the extent that the IRS may have provided
information to a magistrate to obtain the warrant, and that information caused the warrant
to be “flawed,” the provision of such information was not ministerial.
Whether the loss of the partnerships’ books and records involved a “ministerial act”
is a closer question. In a temporary regulation, the IRS defined “ministerial act” as
a procedural or mechanical act that does not involve the exercise of judgment
or discretion, and that occurs during the processing of a taxpayer’s case after
all prerequisites to the act, such as conferences and review by supervisors,
have taken place. A decision concerning the proper application of federal tax
law (or other federal or state law) is not a ministerial act.8
This definition is accompanied by several examples indicating that a ministerial act generally
consists of implementing a decision, not making a decision. According to the examples,
• once an IRS “group manager” approves a taxpayer’s request to transfer her
case to another office, “the transfer of the case is a ministerial act” and
“interest attributable to a delay in transferring the case” may be abated;
• if an IRS examination reveals a deficiency and the taxpayer and the IRS
have identified all agreed and disputed issues, a notice of deficiency has
been prepared and reviewed, and any other prerequisites have been
7
Horton v. California, 496 U.S. 128, 143-44 (1990) (“The [Fourth] Amendment protects . . .
by requiring a neutral and detached magistrate to evaluate, before the search or seizure, the
government’s showing of probable cause and its particular description of the place to be searched and
the items to be seized.”).
8
Temp. Treas. Reg. § 301.6404-2T, 52 Fed. Reg. 30162-01 (1987) (adopting the definition
of “ministerial act” in a temporary regulation that applies to taxable years after December 31, 1978).
6
completed, “issuance of the notice of deficiency is a ministerial act” and
“interest attributable to a delay in issuing the notice” may be abated;
• if the taxpayer invested in a tax shelter and the IRS’s extensive
examination of the tax shelter causes delay, the delay is not due to a
ministerial act and “interest attributable to this period cannot be abated”;
and
• if an IRS agent is sent to a training course and the agent’s cases are not
reassigned, neither the decision to send the agent to training nor the
decision not to reassign the cases is a ministerial act and “interest
attributable to the delay cannot be abated.”9
This temporary regulation has since been replaced by a revised regulation, which only
applies to more recent tax years.10 In 1996 Congress amended 26 U.S.C. §6404(e) to include
managerial as well as ministerial acts.11 The revised regulation was developed after this
amendment and did not alter the definition of ministerial act,12 but added a definition of
“managerial act”13 and examples clarifying that managerial acts include decisions to grant
sick leave, send an agent to training, and not to reassign an agent’s cases.14 The examples also
9
Id.
10
26 C.F.R. § 301.6404-2(d) (governing taxable years beginning after July 30, 1996).
11
See Pub. L. No. 104-168, § 301, 110 Stat 1452 (1996).
12
26 C.F.R. § 301.6404-2(b)(2).
13
Id. § 301.6404-2(b)(1) (“Managerial act means an administrative act that occurs during the
processing of a taxpayer’s case involving the temporary or permanent loss of records or the exercise
of judgment or discretion relating to management of personnel. A decision concerning the proper
application of federal tax law (or other federal or state law) is not a managerial act. Further, a general
administrative decision, such as the IRS’s decision on how to organize the processing of tax returns
or its delay in implementing an improved computer system, is not a managerial act for which interest
can be abated under . . . this section.”).
14
Id. § 301.6404-2(c).
7
clarify that decisions regarding substantive tax law or the review process itself, such as decisions to
prioritize one case over another or to delay processing a case until a tax shelter has been examined,
are not ministerial acts.15
The revised regulation also expressly characterizes the loss of taxpayer records as a
managerial, not a ministerial, act.16 The earlier, temporary regulation did not indicate how
the loss of records should be characterized.17 As noted, the revised regulation and its
inclusion of loss of taxpayer records as a managerial act do not apply to the tax years at issue
in this case. Nevertheless, we give considerable deference to the IRS’s definition of what
constitutes a ministerial act, particularly when, as here, Congress intended the IRS to adopt
regulations defining a ministerial act,18 and the revised regulation was adopted pursuant to
notice-and-comment rulemaking procedures.19
The IRS’s characterization of losing taxpayer records as a “managerial act” finds
support in the legislative history of the 1996 amendments to section 6404(e). The term
“managerial” was added to section 6404(e) in part to permit abatement for loss of taxpayer
15
Id.
16
Id. § 301.6404-2(b)(1) (defining “managerial act” to include “the temporary or permanent
loss of records”).
17
See Temp. Treas. Reg. § 301.6404-2T, 52 Fed. Reg. 30162-01 (1987).
18
SEN. REP. No. 99-313, 1986-C.B. 1, 209 (1986) (“The IRS may define a ministerial act in
regulations.”).
19
63 Fed. Reg. 70012-01 (1998); see also United States v. Mead Corp., 533 U.S. 218, 229-31
(2001) (noting that agency interpretations adopted pursuant to notice-and-comment rulemaking
procedures are generally afforded a high level of deference under Chevron U.S.A., Inc. v. Natural
Resource Defense Council, Inc., 467 U.S. 837, 842-44 (1984)).
8
records.20 Therefore, the IRS’s revised regulation does not reflect a change in the definition
of “ministerial act”; it reflects the congressional understanding that the loss of records was
not ministerial and would not be a basis for abatement before the 1996 amendment. The
Bealls’ allegation that the IRS returned taxpayer records in disarray is similar to the loss of
records and should be treated as a managerial, rather than a ministerial, act.
The Bealls observe that in another case, the IRS conceded that interest should be
abated due to the loss of records.21 Citing the doctrine of judicial estoppel, the Bealls assert
that the IRS cannot take a different position in this case. This argument was made for the
first time in the Bealls’ reply brief on appeal. Therefore, the issue was waived.22 This court
may raise judicial estoppel sua sponte in “especially egregious case[s] wherein a party has
successfully asserted a directly contrary position.”23 But even assuming the estoppel doctrine
applies, this is not an egregious case. The IRS did not affirmatively assert a contrary
20
See H.R. REP. NO. 104-506, at 27 (1996), reprinted in 1996 U.S.C.C.A.N. 1143, 1150.
(“The bill permits the IRS to abate interest with respect to any unreasonable error or delay resulting
from managerial acts as well as ministerial acts. This would include extensive delays resulting from
managerial acts such as: the loss of records by the IRS, IRS personnel transfers, extended illnesses,
extended personnel training, or extended leave.” (emphasis added)).
21
See Bo v. Commissioner, 89 T.C.M. (CCH) 1474 (2005) (“Respondent lost petitioners’ file
from June 26 to November 7, 2001. The Commissioner’s loss of a taxpayer’s file is a ministerial act.
Respondent concedes that interest that accrued during this period should be abated.” (citation
omitted)).
22
See United States ex rel. Am. Bank v. C.I.T. Constr. Inc. of Tex., 944 F.2d 253, 258 (5th
Cir. 1991) (“American cannot raise the doctrine of judicial estoppel on appeal because its failure to
plead estoppel means that it waived the issue.”).
23
Id.
9
position; it merely conceded that interest should be abated for the period of the loss.24 The
concession was not necessarily that the loss was a ministerial act; it could have been based
on the case’s factual circumstances.25
III
The Bealls contend that the district court erred in denying them additional discovery.
The discovery they sought related to the question of when the IRS first contacted the Bealls.
Even assuming the district court abused its discretion in denying further discovery, an issue
we do not decide, the requested discovery does not bear on the question of law that resolves
this case, which is whether the IRS’s alleged errors and delays were ministerial acts.
*****
For the foregoing reasons, we AFFIRM the district court’s judgment dismissing this
case.
24
See Bo v. Commissioner, 89 T.C.M. (CCH) 1474 (2005).
25
See id.
10