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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 16-17109
__________________________
D.C. Docket No. 1:14-cv-22441-CMA
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SALLY JIM,
Defendant - Appellant,
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
Intervenor - Appellant.
__________________________
Appeals from the United States District Court
for the Southern District of Florida
__________________________
(June 4, 2018)
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Before TJOFLAT and JORDAN, Circuit Judges, and STEELE, District Judge. *
TJOFLAT, Circuit Judge:
In 1988, Congress enacted the Indian Gaming Revenue Act (“IGRA”), Pub.
L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. § 2701 et seq.), “to
protect the Indian gaming industry from corruption and to provide for extensive
federal oversight of all but the most rudimentary forms of Indian gaming,”
Tamiami Partners, Ltd. By & Through Tamiami Dev. Corp. v. Miccosukee Tribe of
Indians of Fla., 63 F.3d 1030, 1033 (11th Cir. 1995). IGRA permits an Indian
tribe to engage in gaming and to distribute the revenue from gaming activities to its
members on a per capita basis—that is, an equal payment to each member. 25
U.S.C. § 2710(b)(1), (b)(3). When an Indian tribe decides to distribute the revenue
from gaming activities, however, the distributions are subject to federal taxation.
Id. § 2710(b)(3)(D). The Indian tribe, as a consequence, must report the
distributions, notify its members of their tax liability, and withhold the taxes due
on them. Id. § 2710(b)(3)(D); 26 U.S.C. §§ 3402(r)(1), 6041(a).
In the case before us, an Indian tribe engaged in gaming activities. Each
quarter, the tribe used the revenue of the gaming activities to fund per capita
distributions to its members. But the tribe disregarded its tax obligations on these
distributions. It neither reported the distributions nor withheld taxes on them.
*
Honorable John E. Steele, United States District Judge for the Middle District of
Florida, sitting by designation.
2
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In 2001, a member of the tribe received distributions on behalf of herself,
her husband, and her two daughters. She neither filed a tax return for the 2001 tax
year nor paid federal taxes on the distributions. The Government, after catching
wind of the tribe’s distribution program, assessed taxes, penalties, and interest
against the member for the distributions. The member did not pay the assessments.
As a result, the Government brought suit to reduce the tax assessments to a
judgment in district court. The tribe moved to intervene as of right 1 because the
case required a determination as to the taxability of the distributions, which could
impair its distribution program and subject it to reporting and withholding
requirements. Its motion was granted, and the tribe filed an answer and affirmative
defenses.
In the proceedings below, the member and the tribe raised as an affirmative
defense that the distributions were exempt from taxation as “Indian general welfare
benefit[s]” under the Tribal General Welfare Exclusion Act (“GWEA”), Pub. L.
No. 113-168, 128 Stat. 1883 (2014) (codified at 26 U.S.C. § 139E). GWEA
excludes from federal taxation “any payment made or services provided to or on
behalf of a member of an Indian tribe . . . pursuant to an Indian tribal government
1
See Fed. R. Civ. P. 24(a).
3
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program.” 2 26 U.S.C. § 139E(b). The Government moved for summary judgment
on this defense. On summary judgment, the District Court determined that “the
Tribal GWE Act was not meant to supplant the IGRA; that is, per capita
distributions of gaming revenue remain taxable income, even if these distributions
arguably promote the general welfare of a tribe.”
In this appeal, the member and the tribe contend that the District Court erred
in concluding that the exemption for Indian general welfare benefits did not apply
to the distributions.3 The tribe alone asserts that the District Court erroneously
upheld tax penalties against the member and incorrectly attributed to the member
the distributions of her husband and daughters. Lastly, the tribe argues that the
District Court erred by entering judgment against it as an intervenor.
We affirm the ruling of the District Court in each of these matters. The
distribution payments cannot qualify as Indian general welfare benefits under
2
To qualify for this exemption, the Indian tribal government program must meet the
following requirements:
(1) the program is administered under specified guidelines and does not
discriminate in favor of members of the governing body of the tribe, and
(2) the benefits provided under such program--
(A) are available to any tribal member who meets such guidelines,
(B) are for the promotion of general welfare,
(C) are not lavish or extravagant, and
(D) are not compensation for services.
26 U.S.C. § 139E(b)(1)–(2).
3
The member and the tribe raise two arguments in the alternative that are wholly lacking
in merit. See infra note 17.
4
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GWEA because Congress specifically subjected such distributions to federal
taxation in IGRA. The member has waived any arguments as to penalties or the
amount assessed against her, and the tribe lacks a legal interest in those issues.
The District Court did not err in entering judgment against the tribe because the
tribe intervened as of right and the Government sought to establish its obligation to
withhold taxes on the distributions.
I.
A.
In 1990, the Miccosukee Indian Tribe of Florida (“Tribe”), an Indian tribe
recognized under the Indian Reorganization Act of 1934, Pub. L. No. 73-383, 48
Stat. 984 (1934), began to operate a gaming facility called Miccosukee Indian
Bingo and Gaming (“MIBG”) on its reservation lands in southern Florida.
Since 1984, the Tribe has provided its members quarterly payments to help
them live on the reservation without outside assistance. 4 To fund these
distributions, the Tribe taxes the “gross sales” made on the reservation as well as
the rents from land and oil leases. The Tribe collects this tax revenue in what it
calls the “non-taxable distributable revenue” account (“NTDR”). Each quarter, the
Tribe gathers and approves a distribution from the NTDR. It divides the NTDR’s
4
The Bureau of Indian Affairs approved the Tribe’s program to provide these payments
on December 13, 1984.
5
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balance by the number of tribal members and then writes a check to each member
for her proportional share.
In 1995, when the Tribe began gaming activities, it imposed a “gross
receipts tax” specifically on MIBG. 5 The Tribe also collects this gaming tax in the
NTDR for distribution. In theory, therefore, the NTDR contains revenue from both
gaming and non-gaming sources, all of which the Tribe distributes to its members.
The reality is that the lion’s share of the revenue for the distributions comes
from MIBG. In the financial year ending on September 30, 2001, MIBG
contributed $32,103,681 into the NTDR; the Tribe distributed $32,268,000 to its
members that year. This means that $164,319 originated from other sources.
Similarly, in 2002, MIBG paid $37,462,023 into the NTDR; the Tribe distributed a
total of $36,335,300 that year, leaving an excess of $1,126,723 in gaming revenue.
As the numbers reveal, MIBG contributed the vast majority of the funds for
distribution. Despite this fact, the Tribe neither reported the distributions nor
withheld federal taxes on them.
5
The Tribe defined “gross receipts” to “include all amounts wagered and received by
MIBG, all admission fees paid to MIBG, and all other monies received by MIBG from ancillary
or supporting operations (including, but not limited to, food and beverage services, gift shop
sales, and related commercial activities).” MIBG was required to calculate and pay the gross
receipts tax on the last day of each calendar month.
6
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In 2001, Sally Jim, a member of the Tribe, received and cashed distribution
checks on behalf of herself, her husband, and her two children. 6 The distributions
totaled $272,000, which amounted to $68,000 per person. She also earned $25,990
through her employment at the tribal healthcare center in that year. Sally Jim
neither filed a tax return in 2001 nor paid federal taxes on the distributions.
In September, 2004, because of Sally Jim’s failure to file a tax return, the
Government assessed taxes, penalties, and interest against her for the 2001 tax
year. On December 31, 2012, after becoming aware of the distributions Sally Jim
received from the Tribe, the Government assessed additional taxes, penalties, and
interest against her. Sally Jim did not pay the assessments.
B.
On July 1, 2014, the Government sought to reduce the assessments to a
judgment in the District Court. In its one-count complaint, the Government
alleged that Sally Jim failed to pay taxes and penalties of $267,237.18 for 2001. 7
The Tribe moved to intervene as of right under Federal Rule of Civil Procedure
6
The Tribe has a matriarchal culture in which the distributions payments are made out to
the matriarch of the household. The matriarch is expected to divvy the distributions between the
household members. If the household has children, the matriarch is obligated to either use the
children’s distributions for their benefit or to save them until the children reach adulthood.
7
In January 2015, after the IRS had commenced proceedings against Sally Jim, her
attorney prepared her tax return for 2001. She signed and filed it on January 20, 2015. The
return stated that the $272,000 she received in distribution payments in 2001 were non-taxable as
Indian general welfare benefits under GWEA.
7
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24(a). 8 The District Court granted the motion after determining that a ruling could
subject the Tribe to withholding and reporting requirements and affect its general
welfare program.
Sally Jim and the Tribe answered the complaint and raised affirmative
defenses. They alleged that Sally Jim did not owe taxes on the distributions
because they were exempt from taxation. Their principal argument was that the
distributions qualified as “Indian general welfare benefit[s]” under GWEA and
therefore could not be taxed.9 26 U.S.C. § 139E(a). In case this argument failed,
Sally Jim alleged that the Government wrongly included the distributions of her
household members in the assessment against her. She also alleged that she should
not be subject to penalties because she relied “upon the advice of Tribal officials as
well as the representatives of the Bureau of Indian Affairs.”
8
Federal Rule of Civil Procedure 24(a) reads:
(a) Intervention of Right. On timely motion, the court must permit anyone to
intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of
the action, and is so situated that disposing of the action may as a practical matter
impair or impede the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.
9
Sally Jim and the Tribe also alleged that the distributions did not come from the “net
revenue” of MIBG and that the “[d]istributions are derived directly from the land, and thus are
not subject to federal income taxation and reporting requirements.”
8
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The Government moved the District Court for summary judgment, arguing
that GWEA did not exempt the payments from taxation.10 Specifically, the
Government argued that GWEA is inapplicable to the distributions because
Congress, through IGRA, specifically intended to tax distributions of gaming
revenue. Sally Jim and the Tribe, in a joint response, countered that a dispute of
material fact existed on whether the distributions met the requirements to qualify
as Indian general welfare benefits under GWEA.
The District Court granted summary judgment in part. It held that pursuant
to IGRA the “per capita distributions of gaming revenue remain taxable income,
even if these distributions arguably promote the general welfare of a tribe.” 11 The
District Court, however, denied summary judgment as to how much of the
distributions came from sources other than gaming, which might render them
eligible for an exemption as Indian general welfare benefits.
With respect to the tax assessments against Sally Jim, the District Court
concluded that a genuine dispute of material fact existed regarding the extent of
Sally Jim’s tax liability because some of the checks she received were “made out
to her husband and her daughter.” On tax penalties, the District Court held that
10
The Government further argued the distributions were not exempt as income from
reservation lands and that Sally Jim was subject to tax penalties because she had not reasonably
relied on the advice of a tax expert.
11
The District Court also held that a gaming enterprise, like MIBG, does not directly
derive income from the land and therefore does not have a tax exemption on that ground.
9
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Sally Jim had not demonstrated reasonable cause for failing to timely file her tax
return as to her salary. 12 But the District Court denied summary judgment on
whether Sally Jim was subject to penalties for failing to report and pay taxes on the
tribal distributions because a dispute of material fact existed as to whether she
reasonably relied on the advice of an attorney or statements made during tribal
meetings.
The parties consented to a bench trial, which took place August 11–16,
2016. In its opening statement and closing argument, the Government stressed that
the distributions came solely from the gross receipts tax on MIBG, a gaming
facility, and thus that GWEA could not apply to any portion of them. As to the
amount of the tax assessments against Sally Jim, the Government contended that
Sally Jim “had discretion” to spend the distributions the Tribe made to the
members of her household and therefore that she must pay federal taxes on them.
Lastly, the Government asserted that Sally Jim lacked reasonable cause for failing
to pay taxes on the distributions because she never received advice from a tax
expert.
Sally Jim and the Tribe, in their opening statements and closing arguments,
made no effort to establish how much of the distributions came from a source other
12
The District Court based this conclusion on Sally Jim’s deposition testimony that she
had “everything ready” but “just completely forgot to file that year.”
10
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than gaming activities. 13 They insisted that Sally Jim could not be liable for the
full assessment amount and that she reasonably relied on the advice of tribal
officials and Dexter Lehtinen, the Tribe’s general counsel in 2001.
After careful consideration of the evidence and arguments of the parties, the
District Court set forth its findings of facts and conclusions of law in an order on
August 19, 2016. The District Court reiterated that “the Tribe’s distributions,
derived from gaming proceeds, are not exempted from federal taxation as general
welfare payments or income from the land.” Because neither Sally Jim nor the
Tribe “present[ed] any evidence identifying a specific percentage of the
distributions derived from non-gaming sources,” the District Court held that “no
exemption from taxation applies to the income at issue in this case.” Moving to
whether the Government correctly included the distributions of Sally Jim’s
household members in the assessment against her, the District Court held that she
“exercised sufficient control over the full amount of tribal distributions she
received” to be liable for taxes on them. 14 Lastly, the District Court addressed
13
They again raised the argument that the income from MIBG was tax exempt as directly
derived from the land.
14
In so holding, the District Court put weight on the fact that Sally Jim included the full
$272,000 in distributions on the 2001 tax return she filed in 2015. It found relevant that Sally
Jim did not provide evidence of the trusts in which she allegedly placed her daughters’
distribution checks and that Sally Jim admitted to spending all the money in one of her
daughter’s trust accounts on household expenses. Lastly, with respect to her husband, the
District Court determined that Sally Jim exercised sufficient control over his distribution because
the Tribe “is a matriarchal society,” meaning that “[p]ayments . . . to a male member of the Tribe
11
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whether the Government could impose penalties on Sally Jim for failure to file a
tax return and to pay taxes on the distributions. The District Court ruled that Sally
Jim lacked reasonable cause for this failure because she admittedly forgot to file
the tax return and could not have reasonably relied on the statements of tribal
leaders or Dexter Lehtinen. 15
The District Court concluded that “final judgment will be entered . . . in
favor of the United States of America and against Sally Jim.” It instructed the
Government “to submit a proposed order of final judgment.” Complying with this
instruction, the Government proposed language for an order entering judgment:
In light of the Order Setting Forth Court’s Findings of Fact and
Conclusions of Law, it is ORDERED AND ADJUDGED that
Judgment is entered in favor of the United States and against
Defendant Sally Jim and Intervenor-Defendant Miccosukee Tribe of
Indians of Florida. Specifically, Sally Jim is liable to the United
States in the amount of $278,758.83 as of April 9, 2015 for unpaid
federal income taxes, penalties, and interest assessed against her for
the 2001 Tax Year, plus statutory additions and interest that continue
to accrue under 26 U.S.C. §§ 6621–6622.
The District Court adopted the Government’s proposed language with minor
alterations—and thus entered judgment against both Sally Jim and the Tribe and
who is married to a female member of the Tribe are generally made available to the female
member.”
15
Specifically, the District Court opined that Sally Jim could not have relied on advice of
the tribal leaders because she had not established that any of them were tax experts. As to
Dexter Lehtinen, the District Court credited his testimony that “(1) he never represented Jim or
any other individual member of the Tribe; and (2) he never instructed Jim not to file her federal
income tax returns, nor did he instruct her not to pay tax on the distributions she received from
the NTDR account.”
12
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specified that Sally Jim was liable for the unpaid federal income taxes, penalties,
and interest.
A few weeks later, the Tribe moved the District Court to alter and amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e). The Tribe contended
that the District Court erred by entering judgment against it. A district court, the
Tribe contended, “cannot enter a judgment against a party when nothing during the
course of the litigation or the trial indicated that judgment would be entered against
that party.” Because the record does not explain the “basis” of the judgment, the
Tribe continued, the final judgment is “likely to lead to confusion regarding who is
liable for the amount due and what impact, if any, the judgment has on the Tribe.”
The District Court denied the Tribe’s motion to alter and amend the
judgment. In seeking to intervene, the District Court reasoned, the Tribe
“expressly stated it had an interest in the . . . determination of whether its
distribution payments were subject to federal taxation.” At summary judgment, the
District Court rejected Sally Jim and the Tribe’s affirmative defenses and held that
the distributions were subject to federal taxation—a holding that subjected the
Tribe to reporting and withholding requirements on the distributions. The District
13
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Court therefore ruled that the circumstances warranted entering judgment against
the Tribe, an intervenor as of right with an interest at stake.16
Sally Jim and the Tribe filed notices of appeal, challenging the District
Court’s order granting the Government partial summary judgment, its findings of
fact and conclusions of law, and its final judgment. The Tribe also appealed the
denial of its motion to alter and amend the judgment.
II.
In an attempt to avoid federal income taxation on the distributions, Sally Jim
and the Tribe primarily raise one argument on appeal as to the tax status of the
distributions. 17 They argue that the distributions qualify as “Indian general welfare
16
As to any confusion caused by the final judgment, the District Court stated that the
language of the final judgment “clearly states . . . only Jim is liable for monetary damages” and
that the judgment as to the Tribe “simply relates” to the conclusion that “the Tribe’s distributions
are subject to federal income taxation.”
17
Sally Jim raises two alternative arguments, both of which lack merit. First, she argues
that the distributions do not come from the “net revenue” of MIBG. This is the case, she
contends, because the Tribe imposes a tax on MIBG, places the tax into the NTDR, and then
distributes the NTDR balance each quarter. In other words, Sally Jim argues that the
distributions aren’t made directly from MIBG and therefore aren’t subject to federal taxation.
We decline this invitation to place form over substance in analyzing the taxability of the
distributions. Ocmulgee Fields, Inc. v. C.I.R., 613 F.3d 1360, 1368 (11th Cir. 2010) (“[A] basic
maxim of tax law is that ‘the substance of a transaction, rather than the form in which it is cast,
ordinarily determines its tax consequences.’” (quoting Swaim v. United States, 651 F.2d 1066,
1069–70 (5th Cir. 1981))). IGRA subjects to federal taxation the per capita payments an Indian
tribe makes to its members from gaming revenue, no matter the mechanisms devised to collect
the revenue or administer the payments.
Second, Sally Jim contends that the income from MIBG derives from the land and is
therefore tax exempt under 25 U.S.C. § 5506 and the Miccosukee Settlement Act of 1997, Pub.
L. No. 105-83, 111 Stat. 1624 (1997). These statutes provide that the lands conveyed to Indian
tribes by the Government are not taxable. To be tax exempt under such statutes, the income in
question must “derive[] directly” from an Indian tribe’s lands. Squire v. Capoeman, 351 U.S. 1,
14
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benefit[s]” and therefore are not subject to federal income taxation. 26 U.S.C.
§ 139E(a). 18 This argument presents a question of statutory interpretation: whether
GWEA in effect amended IGRA. We review this question de novo. United States
v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).
IGRA, enacted in 1988, imposes federal income taxes on the per capita
payments an Indian tribe distributes from the net revenue of Indian gaming
activities. 25 U.S.C. § 2710(b)(3). It therefore imposes taxation in “a very specific
situation,” Morton v. Mancari, 417 U.S. 535, 550, 94 S. Ct. 2474, 2483 (1974).
GWEA, enacted in 2014,19 provides a tax exemption “of general application”20 for
9, 76 S. Ct. 611, 616 (1956). MIBG, a casino, does not generate income from the use of
reservation land or the resources of the land. Rather, the income from MIBG comes from
“investment in . . . improvements” on the land and “business activities related to those assets,”
namely gambling. Critzer v. United States, 597 F.2d 708, 714 (Ct. Cl. 1979) (en banc); see also
Campbell v. Comm’r, 164 F.3d 1140, 1142–43 (8th Cir. 1999). It therefore does not derive
directly from the land. Neither the Miccosukee Settlement Act nor § 5506 exempts the income
from MIBG from taxation under IGRA.
18
Section 139E(a) provides that an Indian general welfare benefit is excluded from
“gross income,” 26 U.S.C. § 63(a), and therefore is not subject to federal income taxation.
19
While enacted over a decade after tax year 2001, GWEA applies to the present case
because Sally Jim did not file her 2001 tax return until 2015, meaning that the period of
limitation provided in 26 U.S.C. § 6511(a) did not begin to run until 2015. See GWEA,
§ 2(d)(1), 128 Stat. 1884 (“The amendments made by this section shall apply to taxable years for
which the period of limitation on refund or credit under section 6511 of the Internal Revenue
Code of 1986 has not expired.”).
20
Morton, 417 U.S. at 550, 94 S. Ct. at 2483.
15
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Indian general welfare benefits, 21 without regard to the source of the income. 26
U.S.C. § 139E(b).
“Where there is no clear intention otherwise, a specific statute will not be
controlled or nullified by a general one, regardless of the priority of the
enactment.” Morton, 417 U.S. at 550–51, 94 S. Ct. at 2483; see also Radzanower
v. Touche Ross & Co., 426 U.S. 148, 153, 96 S. Ct. 1989, 1992–93 (1976) (“It is a
basic principle of statutory construction that a statute dealing with a narrow,
precise, and specific subject is not submerged by a later enacted statute covering a
more generalized spectrum.”). In enacting GWEA, Congress expressed no intent
to release the per capita payments of gaming revenue from federal taxation. 22
Congress spoke clearly when it imposed federal income taxation on per capita
payments derived from gaming revenue. If Congress intended GWEA to undo this
arrangement, it knew the words to do so. It chose not to use them. See Animal
21
Provided, of course, that the payments in question meet the four requirements in the
statute. See supra note 2.
22
To the contrary, the legislative history of GWEA suggests that Congress intended to
codify and clarify Revenue Procedure 2014-35, 2014-26 I.R.B. 1110, which itself stated that “per
capita payments to tribal members of tribal gaming revenues that are subject to the Indian
Gaming Regulatory Act are . . . not excludable from gross income under the general welfare
exclusion or this revenue procedure.” See Staff of Joint Comm. on Taxation, 113th Cong.,
General Explanation of Tax Legislation Enacted in the 113th Congress, at 40 (Comm. Print
2015) (stating that GWEA “contains similar requirements to Rev. Proc. 2014-35 in terms of
which benefits would qualify for exclusion under the general welfare doctrine”); 160 Cong. Rec.
E1469-02 (daily ed. Sept. 16, 2014) (statement of Rep. Tom Reed) (noting that GWEA
“generally codifies” Revenue Procedure 2014-35); 160 Cong. Rec. H7601 (daily ed. Sept. 16,
2014) (statement of Rep. Nunes) (stating that GWEA “would codify [Revenue Procedure 2014-
35], specifically applying the general welfare exclusion to Indian tribes and payments received
by tribal members, their spouses and children”).
16
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Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1217 (11th Cir. 2015)
(“Where Congress knows how to say something but chooses not to, its silence is
controlling.” (quotation omitted)). We therefore hold that the exemption for
Indian general welfare benefits, 26 U.S.C. § 139E(a), is inapplicable to the per
capita payments an Indian tribe makes from gaming revenue. The District Court
did not err in holding that GWEA does not exempt the distributions of MIBG’s
revenue from federal taxation.23
III.
Following trial, the District Court held that Sally Jim was subject to tax
penalties for failing to timely file a tax return and that she exercised sufficient
control over the distributions of her husband and children to be assessed taxes on
them. The Tribe, in its initial brief on appeal, contended that the District Court
23
This, of course, would not prevent the exemptions for general welfare benefits or
income derived directly from the land from applying to funds in the NTDR that came from
sources other than MIBG, assuming that Sally Jim and the Tribe could prove that the NTDR
contained such funds. The District Court correctly reserved that question for trial. After trial,
the District Court found that “[t]he vast majority, if not all, of the Tribe’s distributions come
from the Tribe’s net gaming revenue” and that “[t]he Tribe produced no documentary evidence
substantiating its claim that sources other than the Bingo Hall contributed to the NTDR account,”
See United States v. White, 466 F.3d 1241, 1248 (11th Cir. 2006) (stating that a civil defendant
has the burden of proving a tax assessment erroneous after the Government proves that the
assessment was properly made). The District Court therefore held that none of the funds in the
NTDR qualified for the exemptions for general welfare benefits or income directly derived from
the land. Neither Sally Jim nor the Tribe expressly challenged this determination in their briefs
on appeal. Even if they had, the evidence supports the District Court’s finding that the great
majority, if not all, of the distributions came from MIBG and therefore the District Court
committed no error in this regard.
17
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erred in reaching these conclusions. Sally Jim, however, did not challenge the
District Court’s rulings on these matters in her brief.
“Under our caselaw, a party seeking to raise a claim or issue on appeal must
plainly and prominently so indicate. Otherwise, the issue—even if properly
preserved at trial—will be considered abandoned.” United States v. Jernigan, 341
F.3d 1273, 1283 n.8 (11th Cir. 2003); see also Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681 (11th Cir. 2014) (“A party fails to adequately ‘brief’ a
claim when he does not ‘plainly and prominently’ raise it, ‘for instance by
devoting a discrete section of his argument to those claims.’” (quoting Cole v. U.S.
Attorney Gen., 712 F.3d 517, 530 (11th Cir. 2013))). Accordingly, this Court
refuses “to consider issues raised for the first time in an appellant’s reply brief.”
United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004).
In her brief on appeal, Sally Jim challenged only the District Court’s
determination that the distributions were subject to federal income taxation. In
other words, Sally Jim bet the farm on the argument that the distributions were not
taxable.24 She chose not to raise arguments as to penalties or the extent of her tax
liability if we decided, as we do, that the distributions are subject to federal income
24
Indeed, her brief argues only that the distributions do not originate from the “[n]et
revenue” of a gaming facility, 25 U.S.C. § 2710(b)(3), or, in the alternative, that the distributions
are exempt from federal income taxation as Indian general welfare benefits or income derived
directly from the land.
18
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taxation.25 We therefore need not address these issues because they have been
waived. The District Court’s rulings on them stand.
IV.
Lastly, the Tribe contends that the District Court erred by entering judgment
against it and challenges the District Court’s order denying its motion to amend the
judgment. “The decision to alter or amend judgment is committed to the sound
discretion of the district judge and will not be overturned on appeal absent an
abuse of discretion.” Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc.,
763 F.2d 1237, 1238–39 (11th Cir. 1985). We disagree with the Tribe.
It is hornbook law that an intervenor “is treated as . . . an original party and
has equal standing with the original parties.” 7C Charles Alan Wright, Arthur R.
25
The Tribe contested these issues in its brief on appeal, and Sally Jim attempted to adopt
them in her reply brief. The Tribe, however, has no legal interest with respect to penalties
leveled against Sally Jim or Sally Jim’s tax liability for the distributions of her husband and
children; it therefore could not raise those issues on appeal. See Kirkland v. N.Y. State Dep’t of
Corr. Servs., 711 F.2d 1117, 1126 (2d Cir. 1983) (“[T]he sum of rights possessed by an
intervenor, even if granted unconditional intervention, is not necessarily equivalent to that of a
party in a case and depends upon the nature of the intervenor’s interest.”); 7C Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1923 (3d ed.
2007) (“An appeal will be allowed . . . only to the extent of the interest that made it possible for
intervention.”); cf. Town of Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. —, 137 S. Ct. 1645,
1651 (2017) (“[A]n intervenor of right must demonstrate Article III standing when it seeks
additional relief beyond that which the plaintiff requests.”); Boston Tow Boat Co. v. United
States, 321 U.S. 632, 634, 64 S. Ct. 776, 777 (1944) (holding that an intervenor could not
establish violation of an “independent right” sufficient to support an “independent appeal”).
Sally Jim also fails to avoid waiver by incorporating the Tribe’s arguments in her reply brief; she
brought these arguments “too late.” Sapuppo, 739 F.3d at 683.
19
Case: 16-17109 Date Filed: 06/04/2018 Page: 20 of 21
Miller & Mary Kay Kane, Federal Practice and Procedure § 1920 (3d ed. 2007). 26
Just as an original party, an intervenor is “vulnerable to complete adjudication by
the federal court of the issues in litigation between the intervenor and the adverse
party.” United States v. Oregon, 657 F.2d 1009, 1014 (8th Cir. 1981) (quotation
omitted). A district court may therefore enter judgment against an intervenor, the
same as any original party.
Here, the Tribe intervened as of right regarding the tax status of its
distribution payments. As the Tribe argued in its motion to intervene, the
determination whether the distributions were subject to federal taxation would
affect “the Tribe’s ability to preserve the integrity of its general welfare system and
governmental functions.” If the distributions were determined to be taxable, the
Tribe would have legal obligations in the form of reporting and withholding
requirements.
As an intervenor, the Tribe entered the lawsuit with full knowledge of the
Government’s claims, and asserted affirmative defenses that were resolved by the
District Court. It argued each motion, attended depositions, gave an opening
26
See Alvarado v. J.C. Penny Co., Inc., 997 F.2d 803, 805 (10th Cir. 1993); Schneider v.
Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985); Marcaida v. Rascoe, 569
F.2d 828, 831 (5th Cir. 1978); cf. Ross v. Bernhard, 396 U.S. 531, 541 n.15, 90 S. Ct. 733, 740
n.15 (1970) (“[W]hen intervention is permitted generally, the intervenor has a right to a jury trial
on any legal issues he presents.”); Sutphen Estates v. United States, 342 U.S. 19, 21, 72 S. Ct. 14,
16 (1951) (“There is intervention as of right under Rule 24[a][2] when . . . the applicant is or
may be bound by a judgment in the action.” (quotation omitted)).
20
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statement and closing argument, examined witnesses, and produced evidence and
testimony. In other words, the Tribe not only had the status of an original party but
acted like one. The Tribe was also aware that, in its proposed conclusions of law,
the Government asked the District Court to declare that the Tribe’s distributions
were subject to federal income taxation and therefore that the Tribe had an
obligation to withhold taxes on them. As a result, the District Court did not abuse
its discretion in refusing to amend the judgment. 27
AFFIRMED.
27
The Tribe’s argument that the final judgment creates confusion has no merit. The
order clearly states that Sally Jim is liable for the tax assessment, not the Tribe. There can be no
confusion on that point.
21
United States v. Sally Jim
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2018-06-04
Citations: 891 F.3d 1242
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