12-2208
United States v. Evseroff
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 26th
day of June, two thousand thirteen.
PRESENT:
RALPH K. WINTER,
PETER W. HALL,
Circuit Judges,
WILLIAM K. SESSIONS III,*
District Judge.
_____________________________________
United States of America,
Plaintiff-Appellee,
v. 12-2208
Jacob Evseroff,
Defendant-Appellant,
New York State Department of Taxation,
Paul Lawrence Evseroff, Kenneth James Evseroff,
Lynn R. Terrelonge, Barry A. Schneider,
Defendants.
_____________________________________
*
The Hon. William K. Sessions III, of the United States
District Court for the District of Vermont, sitting by
designation.
FOR PLAINTIFF-APPELLEE: Kenneth W. Rosenberg, Attorney
(Michael J. Haungs, Attorney,
Loretta E. Lynch, United States
Attorney for the Eastern District
of New York, on the brief), for
Kathryn Keneally, Assistant
Attorney General, Tax Division,
United States Department of
Justice, Washington, D.C.
FOR DEFENDANT-APPELLANT: Jacob Evseroff, pro se, Brooklyn,
N.Y.
Appeal from the judgment of the United States District Court
for the Eastern District of New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Jacob Evseroff, a licenced attorney
proceeding pro se, appeals from the district court’s judgment
authorizing the Government, in order to satisfy Evseroff’s tax
liabilities, to collect against all assets held by a trust
created by Evseroff (the “Trust”). We assume the parties’
familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
I. Standing on Appeal
As an initial matter, the Government challenges Evseroff’s
standing to appeal this matter pro se in the absence of any Trust
representative. “Standing to appeal is an essential component of
our appellate jurisdiction,” and it therefore must be resolved
before reaching the merits of Evseroff’s appeal. Official Comm.
2
of Unsecured Creditors of WorldCom, Inc. v. SEC, 467 F.3d 73, 77
(2d Cir. 2005). In general, Article III standing consists of
three requirements: (1) injury in fact; (2) causation; and (3)
redressibility. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). To demonstrate injury in fact, “a litigant
must have suffered ‘an invasion of a legally protected interest’
that is ‘concrete and particularized’ and ‘actual or imminent.’”
Tachiona v. United States, 386 F.3d 205, 210-11 (2d Cir. 2004)
(quoting Arizonans for Official English v. Arizona, 520 U.S. 43,
64 (1997)). “To have standing at the appellate stage . . . a
litigant must demonstrate injury caused by the judgment rather
than injury caused by the underlying facts.” Id. at 211
(internal citations omitted). In addition to Article III
standing, the doctrine of prudential standing “encompasses the
general prohibition on a litigant’s raising another person’s
legal rights . . . and the requirement that a plaintiff’s
complaint fall within the zone of interests protected by the law
invoked.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11
(2004) (internal citation and quotation marks omitted).
In his reply brief, Evseroff asserts that the injury caused
by the district court’s judgment is the likelihood that the
Government will seize and dispose of the Dover Street residence,
one of the trust’s assets, thus depriving him of his place of
residence. This assertion is sufficient to establish Evseroff’s
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Article III standing on appeal. See Baur v. Veneman, 352 F.3d
625, 633 (2d Cir. 2003) (“[T]hreatened harm in the form of an
increased risk of future injury may serve as injury-in-fact for
Article III standing purposes.”). Moreover, because his fear of
being dispossessed of his place of residence as a result of the
district court’s judgment implicates Evseroff’s own legal rights,
the prohibition against raising third-party rights embodied in
the prudential standing doctrine is not implicated. See Newdow,
542 U.S. at 11.1
II. Merits
Under federal law, the Government may impose a lien on any
“property” or “rights to property” belonging to a taxpayer until
the taxpayer’s liability is satisfied or the statute of
limitations bars collection. See Drye v. United States, 528 U.S.
49, 55-56 (1999); see also 26 U.S.C. §§ 6321, 6322. Under the
fraudulent conveyance laws of the state in which the property is
located, the Government may seek to enforce such a lien against a
taxpayer who fraudulently disposes of his property prior to the
existence of the lien. See Drye, 528 U.S. at 58; United States
v. McCombs, 30 F.3d 310, 323 (2d Cir. 1994). The Government may
1
As Evseroff has asserted that the loss of his residence is
the only injury he suffered as a result of the district court’s
judgment, it is arguable that he lacks standing to appeal the
Government’s collection against the Trust’s remaining assets.
Nonetheless, because the Dover Street residence is the Trust’s
major asset, we conclude that Evseroff’s showing is sufficient to
permit him to prosecute his appeal.
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also seek to enforce such a lien against property held by the
taxpayer’s nominee or alter ego. See G.M. Leasing Corp. v.
United States, 429 U.S. 338, 350-51 (1977) (“If petitioner
[corporation] was [taxpayer’s] alter ego . . . the Service could
properly regard petitioner’s assets as [taxpayer’s] property
subject to the lien under § 6321.”); see also Shades Ridge
Holding Co. v. United States, 888 F.2d 725, 728 (11th Cir. 1989)
(“Property of the nominee or alter ego of a taxpayer is subject
to collection of the taxpayer’s tax liability.”).
We review de novo the district court’s determination that
Evseroff’s transfers to the Trust were actually fraudulent.
McCombs, 30 F.3d at 328. The district court’s factual findings
underpinning those legal determinations are reviewed for clear
error. United States v. Coppola, 85 F.3d 1015, 1019 (2d Cir.
1996).
Whether Evseroff’s conveyances to the Trust were actually
fraudulent is a question of New York state law, in this case N.Y.
Debtor & Creditor Law § 276. McCombs, 30 F.3d at 323, 327-28.
Section 276 provides that “[e]very conveyance made and every
obligation incurred with actual intent . . . to hinder, delay, or
defraud either present or future creditors, is fraudulent as to
both present and future creditors.” N.Y. Debt. & Cred. Law §
276. The burden of proving actual intent lies with the party
seeking to set aside the conveyance. McCombs, 30 F.3d at 328.
5
“Actual fraudulent intent must be proven by clear and convincing
evidence, but it may be inferred from the circumstances
surrounding the transaction, including the relationship among the
parties and the secrecy, haste, or unusualness of the
transaction.” HBE Leasing Corp. v. Frank, 48 F.3d 623, 639 (2d
Cir. 1995).2
Following our independent review of the entire record, we
identify no error in the district court’s conclusion that the
Government established, by clear and convincing evidence, that
Evseroff’s 1992 transfers of $220,000 in cash and the Dover
Street residence to the Trust were actually fraudulent. The
majority of Evseroff’s arguments with respect to this issue seek
to elevate the district court’s underlying factual findings to
the level of “clear and convincing” proof of his actual intent.
For example, he argues, among other things, that: (1) the
district court’s conclusion that he thought that his Florida
2
Evseroff invites us to adopt the Federal Circuit’s
formulation of the clear and convincing standard of proof set out
in Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276
(Fed. Cir. 2011) (en banc). See id. at 1290-91 (holding, inter
alia, that under the clear and convincing evidence standard,
“when there are multiple reasonable inferences that may be drawn,
intent to deceive cannot be found”). We decline his invitation.
As we have previously stated in a case addressing a similar
actual fraudulent conveyance claim under N.Y. Cred. & Debt. Law §
267, we are “reluctant” to set aside the district court’s finding
of actual fraudulent intent where, as here, “the fraudulent
conveyance inquiry [consists of] merely a battle between the
‘badges’ [of fraud] on the one hand and inferences of [the
defendant’s] nonfraudulent motivation on the other.” McCombs, 30
F.3d at 328.
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residence would be exempt from seizure lacks support in the
record; and (2) the court improperly found that he did not
receive consideration for his transfers into the Trust. The
findings of the district court on these matters are not
dispositive, direct evidence of Evseroff’s fraudulent intent.
Instead they constitute the district court’s underlying factual
findings regarding the “circumstances surrounding the
transaction,” see HBE Leasing, 48 F.3d at 639, from which, viewed
in their totality, Evseroff’s ultimate intent was to be inferred.
In addition, contrary to Evseroff’s assertions, both of the
district court’s conclusions find support in the record.
Accordingly, as we discern no error in the district court’s
application of the clear and convincing evidentiary standard to
the underlying facts and circumstances, we affirm for
substantially the same reasons stated by the district court in
its thorough and well-reasoned order dated April 30, 2012.3
3
As we affirm on the ground that the district court
properly found that Evseroff’s conveyances to the Trust were
actually fraudulent, we need not reach the court’s alternate
holdings that the Government could collect against the Trust
assets under the theories that the Trust was Evseroff’s nominee
or alter ego.
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We have considered all of Defendant’s remaining arguments
and find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8