Granado v. C.I.R., 85-2500

• Decision Date: 13 May 1986
• Docket Number: No. 85-2500,85-2500
• Citation: 792 F.2d 91
• Parties: -5120, 86-1 USTC P 9453 Gregory T. GRANADO, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 91

792 F.2d 91

58 A.F.T.R.2d 86-5120, 86-1 USTC P 9453

Gregory T. GRANADO, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 85-2500.

United States Court of Appeals Seventh Circuit.

Submitted May 13, 1986. ^*

Decided June 5, 1986.

Gregory T. Granado, Hammond, Ind., for petitioner-appellant.

Fred T. Goldbert, Jr., Chief Counsel, I.R.S., Glenn L. Archer, Asst. Atty. Gen. Tax Div., Dept. of Justice, Roger M. Olsen, Act. Asst. Atty. Gen., Dept. of Justice, David English Carmack & Janet A. Bradley, Washington, D.C., for respondent-appellee.

Before CUMMINGS, Chief Judge, WOOD and POSNER, Circuit Judges.

PER CURIAM.

Section 6653(b) of the Internal Revenue Code provides that "if any part of any underpayment ... of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment." The issue presented in this case is whether the Commissioner may assess civil fraud penalties on a tax protester who filed numerous false W-4 forms in 1980 and 1981 and failed to file tax returns in those years. Appellant Granado claims that he is not liable for the fraud penalties because he notified the Commissioner through various communications that he was filing the false forms in the belief that he was exempt from taxation. His belief that he was exempt was based on frivolous arguments such as wages are not income. See Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir. 1986) (citing numerous cases). The Tax Court held that the Commissioner properly assessed the civil fraud penalties. In upholding the Commissioner's assessment, the Tax Court found that Granado had filed federal income tax returns from 1969 through 1979, and that he "must have known, or reasonably should have known" that he was required to pay federal income taxes. The court concluded that the filing of the false W-4s, thereby eliminating withholding, combined with the failure to file tax returns for 1980 and 1981 established an intent to evade the payment of income taxes and justified the imposition of the civil fraud penalties. We affirm. In so holding, we reject the analysis of the Third Circuit in Raley v. Commissioner, 676 F.2d 980 (3d Cir.1982).

In Raley v. Commissioner, 676 F.2d 980 (3d Cir.1982), a case factually indistinguishable from this one, the Third Circuit stated that fraud encompassed "intentional wrongdoing on the part of a taxpayer motivated by a specific purpose to evade a tax known or believed to be owing." Id. at 983 (quoting Stoltzfus v. United States, 398 F.2d 1002, 1004 (3d Cir.1968), cert. denied, 393 U.S. 1020, 89 S.Ct. 627, 21 L.Ed.2d 565 (1969)). The court stated that Raley's actions in filing false W-4 forms and incomplete tax returns which falsely indicated that those returns were amending prior returns might ordinarily justify imposing the civil fraud penalties. However, the court held that because Raley "went out of his way to inform every person involved in the collection process that he was not going to pay any federal income taxes," he was not liable for penalties under section 6653(b). Raley, 676 F.2d at 984.

The Tenth Circuit in Zell v. Commissioner, 763 F.2d 1139 (10th Cir.1985), considered a case with similar facts. The majority of the panel that considered the issue endorsed the reasoning of Raley, concluding that "[c]learly, where the taxpayer has informed the IRS of his refusal to file or to pay, and of the reasons for that refusal, the government has not been deceived." 763 F.2d at 1144. The court found support for its conclusion by comparing section 6653(b) with section 6653(a). Section 6653(a) imposes a 5% penalty when underpayment is "due to negligence or intentional disregard of rules or regulations (but without intent to defraud)." The court stated that the fraud provisions of the tax code "require more than a disclosed willful refusal to file or the filing of protest returns." However, the court went on to hold that the filing of false W-4 forms provided an "affirmative act of concealment or misrepresentation" that justified the imposition of the civil fraud penalties. Id. at 1146.

Judge Barrett, disagreeing with the analysis of the majority opinion in Zell, wrote an opinion concurring in the result. Zell, 763 F.2d at 1147 (Barrett, J., concurring in result). He noted that Raley was factually indistinguishable from Zell. He pointed out that both cases involved taxpayers who "(a) were in the income tax protest movement, (b) did not file income tax returns for two years, (c) filed false income tax returns for two years, and (d) supplied false W-4 withholding forms." Id. Judge Barrett found the Raley court's reasoning flawed because it "defied the purpose of the code." Judge Barrett reasoned that "[o]ne who goes out of his or her way to inform the world at large that he or she will not pay federal income taxes is surely evading a tax known to be owing." Id. He found that "intentional failure to disclose any income from which a tax may be computed is far more serious than intentionally understating or concealing income." Id. (emphasis in original) He concluded that the government can establish fraud under section 6653(b) without proving an evil motive or sinister purpose. Rather, he found that the government only had to show that the taxpayer attempted to evade a tax that he knows is owed to the government. Id. at 1148.

We agree with Judge Barrett that Zell is really indistinguishable from Raley. By upholding the Tax Court, we are following the holding of Zell but we do not mean to adopt its analysis insofar as it accepted the reasoning of Raley. As the Ninth Circuit recently pointed out, fraud under section 6653 "is intentional wrongdoing on the part of the taxpayer to avoid a tax known to be owing." Akland v. Commissioner, 767 F.2d 618, 621 (9th Cir.1985). By filing fraudulent W-4 forms and failing to file tax returns, appellant succeeded in avoiding paying taxes for a number of years. The fact that he told the Internal Revenue Service that he was evading taxes does not make it any less fraudulent. As Judge Barrett pointed out, the civil fraud provisions are there in part to reimburse the government for the expense that it incurs in collecting taxes that the taxpayer declined to pay even though he knew that he owed the government the money. Zell, 763 F.2d at 1147 (Barrett, J., concurring) (citing Helvering v. Mitchell, 303 U.S. 391, 401, 58 S.Ct. 630, 82 L.Ed. 917 (1938)). It is now 1986 and the government is still seeking to collect appellant's taxes for 1980 and 1981. Although appellant's disclosure of fraudulent activity to the Commissioner may make the Commissioner's job somewhat easier, it is still a difficult burden to collect taxes from an individual who has knowingly filed false W-4 forms and refused to file income tax returns. The civil fraud penalties, along with other penalties, help reimburse the government for expenses that it incurs in collecting taxes that an individual has...