Urso v. U.S.

• Decision Date: 02 January 1996
• Docket Number: 95-1387,Nos. 95-1282,s. 95-1282
• Citation: 72 F.3d 59
• Parties: -8017 Dominick URSO, et al., Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 59

72 F.3d 59

76 A.F.T.R.2d 95-8017

Dominick URSO, et al., Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.

Nos. 95-1282, 95-1387.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1995.

Decided Dec. 14, 1995.

Rehearing Denied Jan. 2, 1996.

Joseph A. Longo (argued), Mt. Prospect, IL, for Plaintiffs-Appellees in both cases.

Gary R. Allen, Kenneth L. Greene, William J. Patton (argued) Department of Justice, Tax Division, Appellate Section, Washington, DC, for Defendant-Appellant in No. 95-1282.

Gary R. Allen, Kenneth L. Greene, William J. Patton (argued), Department of Justice, Tax Division, Appellate Section, Washington, DC, Eugene J. Rossi, Barbara E. Seaman, Department of Justice Tax Division, Appellate Section, Washington, DC, Thomas P. Walsh, Office of the United States Attorney, Civil Div., Chicago, IL, for Defendant-Appellee in No. 95-1387.

Before CUMMINGS, WOOD, Jr., and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Dominick Urso and his wife Leonarda Urso operate a landscaping business through their corporation, Dominick Urso Landscaping. Separate audits of the Ursos and their corporation--conducted by different auditors--reached inconsistent conclusions about the proper tax treatment of their financial affairs. Extended administrative proceedings, followed by this suit seeking a refund, resolved most issues in favor of the corporation, and the Commissioner accepts that decision. Now the inconsistency has been reversed. For example, the corporation was allowed to treat a $24,000 payment to the Ursos as an ordinary and necessary business expense, but the Ursos have not reported the transfer as income or paid tax on it. The IRS believes that it is entitled to collect and filed a counterclaim; the Ursos disagree, and the jury backed them up. Their theory is that a post-audit examination of their returns for 1984 and 1985 created a binding contract, closing those tax years to all further dispute; and the fact that they failed to inform the examiner about the $24,000 payment is just a tough break for the collectors of the revenue, which the IRS could have avoided by assigning the individual and corporate returns to a single person. The dispute as it comes here also entails fraud penalties and other items that the Ursos say were extinguished by a form the examiner signed memorializing her conclusions.

Before, during, and after the trial, the IRS insisted that the examiner lacked authority to make a promise binding the United States. That power is reposed in the Secretary of the Treasury, 26 U.S.C. Secs. 7121, 7122, who has delegated it to several classes of employees--all superior in the bureaucratic hierarchy to examiners. See Delegation Order No. 11 (Rev.19), 1989-38 I.R.B. 4; Delegation Order No. 97 (Rev. 31), 1992-2 C.B. 357. Apparently the district judge thought that the scope of an examiner's authority is a question to be resolved at trial, in light of the parties' dispute. Yet the meaning of a regulation is a question of law for the court, not of fact for the jury. Bammerlin v. Navistar International Transportation Corp., 30 F.3d 898, 900-01 (7th Cir.1994).

An examiner just can't compromise a tax claim or close a tax year to further examination. An examiner may approve a refund (as this one did), and any examiner who does so will file a report explaining why (as this one did, on Form 4549, "Income Tax Examination Changes"), but most refunds are provisional. Only a closing agreement signed by a person authorized to ink such pacts, the expiration of the statute of limitations, or the disposition of litigation brings the process to a guaranteed end. Apparent authority is not enough to bind the federal government to a contract; unless the agent had actual authority, any agreement is ineffectual. See United States v. Beebe, 180 U.S. 343, 351-55, 21 S.Ct. 371, 374-76, 45 L.Ed. 563 (1901); Stone v. Bank of Commerce, 174 U.S. 412, 19 S.Ct. 747, 43 L.Ed. 1028 (1899). The Supreme Court applied this principle to taxes in Botany Worsted Mills v. United States, 278 U.S. 282, 288-89, 49 S.Ct. 129, 131-32, 73 L.Ed. 379 (1929). See also, e.g., Brubaker v. United States, 342 F.2d 655, 662 (7th Cir.1965); Brooks v. United States, 833 F.2d 1136, 1146 (4th Cir.1987).

Instead of responding to the Commissioner's argument about the limits of examiners' authority, the Ursos submit that their adversary forfeited this contention by failing to develop it at trial. The United States moved for judgment as a matter of law at the close of the Ursos' case, and again at the close of the trial. It did not support these motions with argument, and the Ursos insist that Fed.R.Civ.P. 50(a)(2), which says that the "motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment", bars appellate review. The United States responds that it did not argue the motions because the district judge cut its lawyer off, denying the motions for the same reason the judge had refused to grant summary judgment. The transcript does not reveal whether the judge preempted argument (that depends on whether body language suggested to the judge that the single sentence the attorney got out on each occasion was the only one he planned to speak), but we do know that the district judge addressed the merits on post-judgment motions. He did not think...