United States v. Navolio Ex Rel. Ivan D. Saxe Living Trust

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16746 ELEVENTH CIRCUIT
JUNE 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 06-01461-CV-ORL-19GJK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THEODORE T. NAVOLIO, as Trustee of
the Ivan D. Saxe Living Trust
Dated April 21, 1970, as Amended
and Restated January 26, 1998,

Defendant-Appellant,

SEIKO KANEYAMA, as Trustee of the
Ivan D. Saxe Living Trust Dated
April 21, 1970, as Amended and
Restated January 26, 1998,
et al.,

Defendant.
________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 9, 2009)
Before DUBINA, Chief Judge, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Following a bench trial in this foreclosure action, Theodore T. Navolio

appeals pro se the district court’s order entering judgment in favor of the Internal

Revenue Service (“IRS”) and ordering the sale of his property. After review, we

affirm.

I. BACKGROUND

A. Complaint

The government instituted this civil action to foreclose federal tax liens

against several parcels of real property owned by Navolio. According to the

government, Navolio owed $183,788.49 for tax years 1989 through 1993 and

refused to pay after notice of the assessments and demand for payment.

Navolio, proceeding pro se, contended that he never received the required

notice of the assessments against him, referred to as the statutory notice of

deficiency, or a demand for payment. In denying the government’s motion for

summary judgment, the district court concluded that there was a genuine issue of

material fact as to whether the IRS had exercised reasonable diligence in

determining Navolio’s last known address for purposes of sending him the

statutory notice of deficiency.

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 Prior to trial, the district court entered a case management and scheduling

order that required the parties to meet in person before trial and examine all the

trial exhibits that they expected to introduce into evidence. Additionally, the

parties filed a joint pretrial statement containing the government’s evidence list.

B. Bench Trial

At a bench trial, Navolio testified that he was incarcerated for securities

fraud from April 1994 until February 1996. Originally incarcerated in Florida,

Navolio was moved to a prison in South Carolina in June 1995. At some point,

Navolio was transferred to a prison in Nevada, where he was released in February

1996. After his release, Navolio spoke with an IRS criminal investigation division

(“CID”) agent about appearing as a witness in a tax prosecution. Navolio agreed

and testified in two tax crime cases in March and October 1996. He received a

letter from a CID agent thanking him for his assistance.

IRS agent Cathleen Curry testified that IRS documents, including the tax

return account receipt and the tax modules for 1992 and 1993, indicated that the

IRS had issued a statutory notice of deficiency. Curry said that a tax module is a

snapshot of everything that has happened to a taxpayer’s account separated by

year. Curry explained that she could tell from certain codes on the documents that

the notice had issued. Curry also testified that the IRS’s records indicated that

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Navolio’s residence was 662 George Miller Circle, Port Orange, Florida. Curry

acknowledged that Navolio’s tax examination files for 1992 and 1993 could not be

found.

The government then sought to introduce the 1992 and 1993 tax modules as

exhibits 6 and 7. When the district court asked Navolio whether he had any

objection, Navolio replied, “That’s a mystery to me. I don’t know. I don’t

understand that.” The district court construed that statement as an objection and

asked, “Is there an objection?” Navolio responded, “Thank you, Your Honor.”

The district court stated that “it appears that the officer has examined this and is

capable of identifying it” and admitted exhibits 6 and 7 over Navolio’s objection.

The government also introduced without objection a certified mail receipt

that states, “Statutory notice of deficiency for the years indicated have been sent to

the following taxpayer(s), date 10/11/95,” and indicates that notices for the years

1988 through 1993 were sent to “Theodore T. Navolio” at three Florida addresses,

the first of which was the Port Orange, Florida address.

Agent Curry further testified that the certified mail receipt showed that the

IRS had issued notices of deficiencies for 1988 through 1993 by mailing them in

October 1995 to three different addresses in Florida and that there was no

indication that any of the mailings were returned as undeliverable. Curry

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explained that the IRS determined a taxpayer’s residence by examining the federal

tax returns and asking the post office about last known addresses. Because

Navolio never notified the IRS of a change in address, the IRS sent the notices to

the last known address it had in its records. Curry also explained that the civil

division of the IRS had no communication with the CID.

Roger Maurice, an IRS agent, testified about the IRS’s established

procedures used to determine the last known address to which a deficiency notice

would be sent. According to Maurice, the procedures included searching the IRS

Masterfile database for the last known address on record for the taxpayer,

examining third-party payor information, such as 1099 forms or W-2s, and

examining the case file for any correspondence or contact with the taxpayer. The

IRS agent would send the notice to every address he could find.

Like Curry, Maurice indicated that certain codes on the tax modules in

exhibits 6 and 7 showed that the IRS had issued a deficiency notice. Maurice

explained that the first address listed on the certified mail receipt (the Port Orange,

Florida address) would have been the last known address for Navolio obtained

from the IRS’s master file and that the two other addresses would have been

alternate addresses the IRS located during its search. Maurice explained that, in

1995, IRS clerks would hand-deliver the notices to the post office and get

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confirmation of receipt from the post office. Maurice stated that this procedure

was followed in Navolio’s case and identified the particular IRS employee, now

deceased, who delivered Navolio’s notice to the post office. Finally, like Curry,

Maurice stated that an examining IRS agent typically would not have contact with

the CID unless the agent had some reason to know that the CID was investigating

the taxpayer.

During Maurice’s testimony, the government sought to introduce several

undisclosed documents that Maurice had located within the previous week.

Navolio objected to their admission because they were not provided to him prior to

trial or listed in the pre-trial stipulation. The district court sustained Navolio’s

objection.

In closing, the government argued that Navolio had failed to advise the IRS

of his address change and that the civil division had followed its standard

procedures, which did not include contacting the CID, in sending out Navolio’s

notices of deficiencies. Navolio argued that he did not understand how the IRS’s

civil division could have trouble mailing him the notice, given that he had been in

contact with multiple CID agents since his arrest in 1994.

The district court entered an order concluding that the IRS was entitled to

foreclose its tax liens against Navolio’s properties. Specifically, the district court

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found that: (1) Navolio never notified the IRS of his change in address or

relocation to Nevada; (2) the IRS sent a notice of deficiency in October 1995 by

certified mail to three addresses in Florida, including Navolio’s last known

residential address; (3) the IRS found the other two addresses after searching the

IRS Masterfile database, examining Navolio’s case file for correspondence and

third-party payor information and requesting postal tracers from the Postal Service;

(4) Navolio’s contacts with the CID agents did not mean that the civil division

knew of his incarceration because the IRS’s civil and criminal divisions generally

did not share information; and, thus, (5) the IRS exercised reasonable diligence by

following its standard procedures to obtain the last known address. The district

court found the assessments and tax liens valid and entered judgment against

Navolio.

C. Post-trial Motion

Navolio filed a motion to alter or amend the judgment pursuant to Federal

Rule of Civil Procedure 59(e), arguing, inter alia, that the district court erred in

admitting exhibits 6 and 7 because the government did not produce them before

trial. The district court denied the motion, finding that the government had listed

exhibits 6 and 7 in the joint pretrial statement and that there was no evidence that

the parties had failed to comply with the court’s pretrial order to meet before trial

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and exchange copies of all trial exhibits. The district court also clarified that, while

it had treated Navolio’s statement during trial about exhibits 6 and 7 as an

objection, Navolio had failed to specify the legal basis of the objection and did not

argue that he had not seen the exhibits before trial. The district court noted that

Navolio had successfully raised this precise objection regarding other government

exhibits.

This appeal followed.

II. DISCUSSION

A. Admission of Exhibits 6 and 7

Ordinarily, we review for abuse of discretion a district court’s rulings on the

admissibility of evidence and will not reverse unless the appellant shows a

“substantial prejudicial effect.” Goulah v. Ford Motor Co., 118 F.3d 1478, 1483

(11th Cir. 1997). However, “reversible error may not be predicated upon a ruling

which admits evidence unless a timely objection . . . appears of record.” Id.

(internal quotation marks omitted). Thus, where a party “foregoes an opportunity

to object --- we do not entertain the objection on appeal.” SEC v. Diversified

Corporate Consulting Group, 378 F.3d 1219, 1227 (11th Cir. 2004). Furthermore,

to properly preserve an objection for appeal, the objecting party must “state a

specific ground of objection” and “a[n] objection on one ground will not preserve

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an error for appeal on other grounds.” Goulah, 118 F.3d at 1483 (internal

quotation marks and citation omitted).

We decline to address Navolio’s arguments regarding the admission of

exhibits 6 and 7 because he failed to raise at trial the objection he raises now.

Specifically, Navolio argues that the documents should have been excluded

because the government did not provide them to him prior to trial. Although

Navolio was twice asked by the district court whether he objected to the admission

of these documents, he did not raise any legal basis for their exclusion. He

certainly did not object to the documents on the grounds that the government had

not disclosed them prior to trial.

More importantly, Navolio demonstrated exceptional proficiency in

representing himself throughout the legal proceedings and, in fact, successfully

raised this precise objection to other documents the government attempted to

introduce.1 Accordingly, Navolio’s failure to raise this specific objection at trial

when given the opportunity to do so forecloses our review of this issue on appeal.

B. Fact Findings Regarding Notices of Deficiency

The IRS notifies a taxpayer of a tax deficiency by certified or registered

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Navolio has paralegal training and has filed past law suits against the United States.
This experience and training clearly helped Navolio, who ably defended himself in the instant
proceedings. Among other things, Navolio successfully opposed the government’s motion for
summary judgment and its motion to enforce a settlement agreement.

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mail. 26 U.S.C. § 6212(a). The mailing of a valid notice of deficiency is a

statutory prerequisite to a tax assessment and collection by the IRS. See 26 U.S.C.

§ 6213(a); Tavano v. Comm’r of Internal Revenue, 986 F.2d 1389, 1390 (11th Cir.

1993).

“This notice shall be sufficient if mailed to the taxpayer at his last known

address.” Pugsley v. Comm’r of Internal Revenue, 749 F.2d 691, 692 (11th Cir.

1985) (internal quotation marks omitted); see also 26 U.S.C. § 6212(b)(1). The

taxpayer has “the burden of providing the IRS with a clear and concise notification

of any change in address.” Pugsley, 749 F.2d at 693 n.1 (quotation marks

omitted). The IRS, however, must exercise reasonable diligence in determining the

last known address. Johnson v. Comm’r of Internal Revenue, 611 F.2d 1015, 1021

(5th Cir. 1980).2 We review a determination that the IRS mailed a notice of

deficiency to the last known address of a taxpayer for clear error. Id. at 1019.

Here, Navolio has failed to show that the district court’s fact findings – that

the IRS conducted a reasonably diligent investigation to determine Navolio’s

address and mailed the deficiency notice to Navolio’s last known address – were

clearly erroneous. IRS agents testified to the agency’s standard procedures for

sending a notice of deficiency to a taxpayer’s last known address and that a notice

2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), this Court adopted
as binding precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981.

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of deficiency was sent to Navolio’s last known address in the master file by

certified mail. It is undisputed that Navolio did not advise the civil division of the

IRS of his multiple changes of address between April 1994 and February 1996.

Further, there is no evidence that IRS agents in the civil division had actual

knowledge at the time they issued the deficiency notices that Navolio was

incarcerated for securities fraud and cooperating with the CID in tax crimes

prosecutions. Although Navolio had contact with IRS agents in the CID during

this time, the criminal and civil divisions ordinarily do not communicate with each

other.

Navolio argues that exhibits 6 and 7 contain certain codes that should have

indicated to the civil division that coordination with the criminal division was

necessary. However, no evidence was presented at trial explaining the meaning of

these codes or supporting an inference that they would have put the civil division

IRS agents on notice that Navolio’s address had changed.3 Thus, district court did

3
The district court did not err in not considering these codes. However, even if the codes
are considered, Navolio still has failed to show clear error. According to the Internal Revenue
Manual (“IRM”), a 914 transaction code (“TC”) indicates that the CID is conducting a criminal
investigation and a TC 912 “reverses” a TC 914. IRM §§ 5.4.13.3, 9.5.1.3.2.6(4)(B). While a
TC 914 is “active,” revenue officers are to contact the CID to “discuss potential problems prior
to initiating contact with taxpayers,” and “[i]f civil and criminal investigations are conducted
simultaneously, close coordination and communication is necessary among all functions.” IRM
§ 25.1.8.7. According to exhibits 6 and 7, a TC 914 was placed on Navolio’s account on May
21, 1994 and a TC 912 was added on February 24, 1995.
Although no evidence was presented at trial as to the significance of these codes, there is
evidence of such in the record. In response to Navolio’s post-judgment Rule 59(e) motion, the

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not err in concluding that the IRS acted with reasonable diligence in identifying

Navolio’s last known address.

AFFIRMED.

IRS submitted a declaration of Agent Maurice explaining that a TC 914, in effect, freezes an
account. The account is assigned to the CID and no other transactions are possible while the
freeze is in place. When the CID inputs a TC 912, the freeze is lifted, which indicates that the
criminal investigation is over. Thus, according to Maurice, the CID’s investigation was over
when civil division IRS agents prepared and issued the notice of deficiency on October 11, 1995.
For this reason, Maurice averred, a civil division IRS agent would have no reason to contact the
CID before issuing a deficiency notice. Thus, these codes do not establish that IRS’s civil
division agents who issued the deficiency notice acted without reasonable diligence.

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