Gordon v. U.S., 84-3094

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation757 F.2d 1157
Docket NumberNo. 84-3094,84-3094
Parties-1298, 85-1 USTC P 9328 Ruth GORDON, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
Decision Date15 April 1985

Page 1157

757 F.2d 1157
55 A.F.T.R.2d 85-1298, 85-1 USTC P 9328
Ruth GORDON, Plaintiff-Appellee,
UNITED STATES of America, Defendant-Appellant.
No. 84-3094.
United States Court of Appeals,
Eleventh Circuit.
April 15, 1985.

Page 1158

Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., Michael L. Paup, Chief, Appellate Section, William S. Estabrook, Laurie A. Snyder, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Brian C. Ellis, Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, HILL, Circuit Judge, and PECK *, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge:

This case is a suit by taxpayer Ruth Gordon to recover payment of a deficiency, plus interest and penalties, which arose as a result of the Internal Revenue Service partially disallowing a refund. This refund had been granted on the basis of joint tax returns by Gordon and her ex-husband and had been credited to a separate tax liability which had been incurred by him. The United States District Court for the Middle District of Florida held that Gordon was entitled to recover the deficiency payment. The United States appeals, arguing that the Internal Revenue Service followed correct procedures. We agree, and reverse.


Gordon and her ex-husband, John Elkinton, filed tardy tax returns for 1972 and 1973 on March 19, 1975. Gordon and Elkinton were married during the 1972 and 1973 taxable years; they were divorced in January 1974. The tax laws allow a couple who have subsequently divorced to file a joint tax return if they were married during the period covered by the return. See 26 U.S.C. Secs. 6013(a) and 6013(d)(1)(A). The tax return showed the couple's tax liability for 1972 to have been $9,267.99, and their liability for 1973 to have been $1,486.78. The couple had paid $11,264.80 in taxes for 1972, all the result of withholding on Elkinton's income, and $4,605.08 in taxes in 1973, of which $4,392.28 was the result of withholding on Elkinton's income and $212.70 the result of withholding on Gordon's income. As a result of the excess of taxes paid over taxes due, the couple claimed a refund of $3,118.30 for 1973, and a refund of $1,996.81 for 1972, for a total refund of $5,115.11.

Page 1159

The Internal Revenue Service, as is its normal practice, allowed an immediate refund to the couple, subject to disallowance as the result of audit. I.R.S. discovered at this point that Elkinton had an outstanding tax liability as the result of an unpaid penalty assessed against him as a result of his failure to follow proper tax procedures in a business for which he was an officer. 1 The amount of the penalty, for which Elkinton was solely responsible, was $8,754.50. I.R.S., instead of issuing a refund check, applied the full amount of the refund to Elkinton's outstanding liability for the penalty. I.R.S. then audited the joint returns and found that they understated the amount of tax due on Gordon's and Elkinton's income for 1972 and 1973 by a total figure of $3,527.98. Although the amount which had been withheld from taxpayers' income for 1972 and 1973 exceeded the amount of taxes which they had owed for those years, as determined by the audit, it did not exceed taxpayers' liability by as much as the amount of the refund that had already been credited to Elkinton's account. The result was that taxpayers' net tax payments had been less than the amount due. Since Elkinton and Gordon had filed a joint return, 26 U.S.C. Sec. 6013(d)(3) made them jointly and severally liable for any taxes due on the return. Accordingly, I.R.S. filed notices of deficiency against both Gordon and her ex-husband, Elkinton.

Elkinton and Gordon filed separate petitions in the United States Tax Court for a determination of the amount of the deficiency due. Elkinton's petition was dismissed for failure to prosecute, and the Tax Court determined Gordon's deficiency to be $3,527.98. 2 Gordon paid the entire $3,527.98, plus interest and penalties totalling $1,589.19, for a total of $5,117.17. Gordon paid this amount on August 16, 1979, and after filing timely refund claims with I.R.S., filed suit in the United States District Court for the Middle District of Florida, seeking recovery of the payment. She argued that there had been no deficiency with respect to herself, but only with respect to Elkinton, as he had received the full benefits of the refund payment which had created the deficiency. The defendant, the United States, conceded that Gordon should receive a refund of $143.44, the portion of the refund which represented taxes on her income, but otherwise asserted that I.R.S.'s actions had been correct. The district court accepted Gordon's arguments, and ordered that she be given a refund of the full $5,117.17, plus interest. The Government filed a timely appeal to this court.


I. The Propriety of I.R.S.'s Deficiency Procedures


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