            Case: 14-11921   Date Filed: 02/25/2015   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 14-11921
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 1:11-cv-22917-MGC


UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                   versus

CARLOS M. DE CESPEDES, et al.,

                                                                     Defendants,

MARTHA L. LAZARO,
formerly known as
Martha L. De Cespedes,

                                                          Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                             (February 25, 2015)
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Before WILSON, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      Martha Lazaro appeals the summary judgment in favor of the United States

to enforce its liens for a judgment of restitution and for federal income taxes

against the surplus proceeds from the sale of real property that Lazaro had owned

jointly with her former husband, Carlos M. De Cespedes. The parties disputed the

priority of competing liens for the judgment of restitution that the United States

had obtained in a criminal action against De Cespedes and for federal tax liabilities

assessed against De Cespedes and Lazaro for the underpayment of federal income

taxes. The district court ruled that federal law gave priority to the restitution lien.

Lazaro argues that the federal tax liens had priority over the restitution lien and

that her attorney is entitled to additional attorney’s fees. We affirm.

                                 I. BACKGROUND

      In 2001, Lazaro and her husband, De Cespedes, purchased a home at 3821

Bayside Court, Miami, Florida, that became encumbered by liens attributable to

their misdeeds. On January 7, 2009, the United States obtained a judgment of more

than $6 million against De Cespedes after he pleaded guilty to conspiring to

commit wire fraud, see 18 U.S.C. § 3664, and on January 15, 2009, the United

States recorded a lien against the Miami property for the full amount of the




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restitution. The restitution payments benefited Kendall Healthcare Group, Ltd., a

victim of De Cespedes’s fraud.

      De Cespedes and Lazaro filed fraudulent federal joint tax returns for tax

years 2001, 2002, and 2003. On March 13, 2009, De Cespedes and Lazaro signed

an agreement in which they admitted to failing to report more than $4 million in

taxable income on their joint returns and consented to the assessment and

collection of income taxes, penalties, and interest by the Internal Revenue Service.

In June 2009, the Service assessed $4,082,262 against the couple. On March 24,

2010, the Service recorded a federal tax lien that named De Cespedes as the

responsible taxpayer, but in May and June 2010, the Service recorded amended

notices that named De Cespedes and Lazaro as the responsible taxpayers.

      In the meantime, Lazaro and De Cespedes commenced divorce proceedings.

Lazaro acquired sole title to the Miami property. On December 15, 2010, a Florida

court identified the property as being held jointly “as tenants by the entirety” and

transferred De Cespedes’s interest to Lazaro as a “lump sum [payment] of alimony

for support.”

      On August 12, 2011, the United States filed a complaint against Lazaro, De

Cespedes, and their creditors that sought to levy the Miami property to satisfy the

restitution lien and federal tax lien. After the district court entered a default

judgment against De Cespedes, Lazaro and the United States agreed to sell the


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property to satisfy all mortgage and state tax liabilities and to deposit the remaining

proceeds in an escrow account for further allocation. Later, the parties agreed to

pay half of the remaining proceeds to the Service to reduce the federal tax lien. The

district court placed the surplus proceeds “in [its] registry . . . pending [a]

determination of how [the proceeds] should be distributed.” Lazaro argued that the

district court should allocate the surplus proceedings to reduce the federal tax lien

because it had priority over the restitution lien.

      After the United States moved for summary judgment, the district court

allocated the surplus proceeds first to the restitution lien and then to the federal tax

lien. The district court determined that the restitution lien had first priority and

allocated half of the surplus proceeds to reduce the restitution lien, which it

reasoned was enforceable only against the value of De Cespedes’s equity interest

in half of the property. The district court allocated the remaining half of the surplus

proceeds to reduce the federal tax lien.

                           II. STANDARD OF REVIEW

      We review de novo the summary judgment in favor of the United States. See

Litton Indus. Automation Sys., Inc. v. Nationwide Power Corp., 106 F.3d 366, 368

(11th Cir. 1997). Summary judgment is appropriate when the evidence, viewed in

the light most favorable to the nonmovant, presents no genuine issue of fact and

the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).


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                                   III. DISCUSSION

         The district court correctly determined that the restitution lien had priority

over the federal tax liens and attached to the value of De Cespedes’s interest in half

of the property. A lien in favor of the United States “ar[ose] on the entry of

judgment” of restitution on January 7, 2009, and attached to “all property and

rights to property of” De Cespedes. See 18 U.S.C. § 3613(c). That restitution lien

was treated as “a liability for a tax assessed under the Internal Revenue Code of

1986,” id., and when recorded on January 15, 2009, the lien had the same effect as

a federal tax lien, id. § 3613(d), (f). Although De Cespedes and Lazaro filed

fraudulent federal tax returns in 2001, 2002, and 2003, a tax lien in favor of the

United States, see 26 U.S.C. § 6321, did not “arise [until June 2009 when] the

assessment [was] made” by the Service for the underpayment of income taxes, id.

§ 6322. Because the restitution lien was entitled to equal treatment as the federal

tax liens, 18 U.S.C. § 3613(c), and was perfected earlier than the tax liens, under

the general rule of “‘first in time, first in right,’” Griswold v. United States, 59 F.3d

1571, 1575 (11th Cir. 1995) (quoting United States v. City of New Britain, 347

U.S. 81, 85, 74 S. Ct. 367, 370 (1954)), the restitution lien had priority over the tax

liens.

         Kendall Healthcare argues, as amicus curiae in support of the United States,

that Lazaro waived her arguments about the priority of the restitution lien, but we


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disagree. Lazaro filed a memorandum that presented to the district court her same

arguments about the ownership and priority of the lien, and the district court

considered the memorandum in determining how to allocate the surplus proceeds.

Kendall Healthcare argues that Lazaro later waived her arguments by failing to

oppose the motion of the United States to transfer the surplus proceeds for payment

of the restitution lien, but Lazaro did not “intentional[ly] relinquish[] or abandon[]”

her arguments that the surplus proceeds should have been allocated differently, see

United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993).

      Lazaro argues that the federal tax liens were made first in time on two

grounds, but we disagree. First, Lazaro argues that the Service created a tax lien by

making four assessments: in November 2002 that corresponded to tax year 2001;

in November 2003 and April 2005 that corresponded to tax year 2002; and in

February 2005 that corresponded to tax year 2003. An assessment creates a lien

only “[i]f any person liable to pay [the] tax neglects or refuses to pay the same

after demand,” 26 U.S.C. § 6321, and the record reflects that Lazaro and

De Cespedes satisfied the four assessments. Second, Lazaro argues that a tax lien

arose when she and De Cespedes signed the agreement, but that agreement was not

an assessment, see id. §§ 6302, 6303, 6322. The agreement instead reflected that

Lazaro and De Cespedes conceded liability for tax delinquencies and consented to

an assessment.


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      Lazaro also argues that the restitution lien could not attach to De Cespedes’s

interest in property because it was held in a tenancy by the entirety and,

alternatively, that the lien was extinguished when the Florida court transferred

De Cespedes’s interest in the property to her, but these arguments fail too. A

spouse’s “interest in [an] entireties property constitute[s] ‘property’ or ‘rights to

property’ [that can be attached] for the purposes of the federal tax lien statute.”

United States v. Craft, 535 U.S. 274, 288, 122 S. Ct. 1414, 1425 (2002). “The

statutory language authorizing the [restitution] lien is broad and reveals on its face

that Congress meant to reach every interest in property that a taxpayer might

have.” Id. at 283, 122 S. Ct. at 1422–23 (internal quotation marks and citation

omitted). De Cespedes had an equitable interest in the property to which the

restitution lien attached. See id. at 283–88, 122 S. Ct. at 1422–26. Although

“Florida law recognizes that property held by husband and wife as tenants by the

entirety is not subject to execution to satisfy the debts of one spouse,” “the . . .

federal statutory powers [of the Service] to tax and attach liens to property trumps

any state property rights afforded to a taxpayer who holds property by the entireties

with [his] spouse,” United States v. Ryals, 480 F.3d 1101, 1110 (11th Cir. 2007)

(quoting In re Sinnreich, 391 F.3d 1295, 1297–98 (11th Cir. 2004)). And the

transfer of De Cespedes’s interest to Lazaro did not affect the existing restitution

lien attached to the property because “it is of the very nature and essence of a lien,


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that no matter into whose hands the property goes, it passes cum onere.” Burton v.

Smith, 38 U.S. 464, 483 (1839). See United States v. Morrison, 29 U.S. 124, 4 Pet.

124, 135–37 (1830); United States v. Bess, 357 U.S. 51, 57, 78 S. Ct. 1054, 1058

(1958). Lazaro fails to cite any authority holding that a federal lien attached to an

equitable interest in real property is extinguished if the interest is transferred

sometime later in a divorce proceeding.

      Lazaro also argues that her attorney “holds a charging lien for fees and costs

incurred in connection with procuring the judgment and order” that transferred

De Cespedes’s interest in the property to her, see 26 U.S.C. § 6323(b)(8), but we

decline to consider this argument. Federal Rule of Appellate Procedure 28(a)(8)

required Lazaro to include in her brief her “contentions and the reasons for them,

with citations to the authorities and parts of the record” that support her argument.

See Fed. R. App. P. 28(a)(8); Four Seasons Hotels and Resorts, B.V. v. Consorcio

Barr S.A., 377 F.3d 1164, 1168 n.4 (11th Cir. 2004). Lazaro fails to identify “a lien

upon or a contract” that conveys any interest in the property to her attorney, 26

U.S.C. § 6323(b)(8), or to provide any substantive argument about her attorney’s

entitlement to a charging lien.

                                  IV. CONCLUSION

      We AFFIRM the summary judgment in favor of the United States.




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