
USCA1 Opinion

	




          June 3, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2280                       ANDREW TEMPELMAN AND PRISCILLA TEMPELMAN,                               Plaintiffs, Appellants,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Andrew Tempelman and Priscilla Tempelman on brief pro se.            ________________     ___________________            Peter E. Papps, United  States Attorney, James  A. Bruton,  Acting            ______________                           ________________        Assistant Attorney General,  Gary R. Allen, William  S. Estabrook, and                                     _____________  _____________________        Doris  D. Coles, Attorneys,  Tax Division,  Department of  Justice, on        _______________        brief for appellees.                                 ____________________                                 ____________________                 Per  Curiam.    Andrew   and  Priscilla  Tempelman  (the                 ___________            taxpayers) filed a  pro se action  in federal district  court            seeking  to enjoin  the Internal  Revenue Service  (IRS) from            collecting back  taxes.    The  lower  court  denied  relief,            concluding that the  suit was barred  by the  Anti-Injunction            Act, 26 U.S.C.    7421(a).  We agree with  this determination            and therefore affirm.                                          I.                 The taxpayers own and operate a small inn and restaurant            in Milford, New Hampshire.  In 1990, the IRS served them with            notices of deficiency pursuant  to 26 U.S.C.    6212 claiming            that approximately $130,000 in taxes, interest and  penalties            were  owed for  the  years 1984  and  1985.1   The  taxpayers            thereafter filed a timely petition under 26 U.S.C.   6213 for            redetermination  in  tax court.    On  October 4,  1991,  the            taxpayers  and the IRS presented the  court with a stipulated            agreement calculating a  total liability for  those years  of            approximately  $35,000 plus  interest.   The tax  court judge            adopted this agreement in a decision dated November 27, 1991.            The taxpayers filed an  appeal from this decision on  May 20,            1992, claiming inter alia  that they had been coerced  by the                           __________            IRS  and the tax court into signing the stipulation.  Because            their  notice of appeal was filed well past the 90-day period            prescribed  by Fed. R. App. P. 13(a), we dismissed the appeal            for lack of jurisdiction on September 1, 1992.  We thereafter                                            ____________________            1.  While  the IRS  also alleged  deficiencies for  the years            1983 and 1986-88, the instant case pertains only to the years            1984-85.              denied their motion for reconsideration and for permission to            file late.                 Under 26  U.S.C.   6213(a),  the IRS is  prohibited from            making   any  assessment  or  levy  or  otherwise  initiating            collection efforts until  the decision of the  tax court "has            become final"--which  in this  case occurred on  February 25,            1992.  See  26 U.S.C.   7481(a).   In the stipulated decision                   ___            adopted by  the tax  court, however, the  taxpayers expressly            agreed to  waive this restriction.   Accordingly, in December            1991,  the  IRS made  assessments  for the  years  1984-85 in            accordance with  that decision.   Upon taxpayers'  failure to            pay, the IRS in  August 1992 levied upon their  New Hampshire            bank account and  filed a  notice of tax  lien against  their            property.  Taxpayers responded  by filing their complaint for            injunctive relief.                                         II.                 The   Anti-Injunction   Act   provides,   with   certain            enumerated  exceptions,  that "no  suit  for  the purpose  of            restraining the assessment or collection of  any tax shall be            maintained  in any court  by any  person ...."   26  U.S.C.              7421(a).    In Enochs  v. Williams  Packing  Co., 370  U.S. 1                           ______     ______________________            (1962), the  Court fashioned an additional  exception to this            provision, holding that a suit  for injunctive relief may lie            where (1) the taxpayer will suffer irreparable harm absent an            injunction, and (2)  it is clear that "under no circumstances                                         -3-            could the Government  ultimately prevail"  on the  underlying            dispute.   Id. at 7;  accord, e.g., South  Carolina v. Regan,                       ___        ______  ____  _______________    _____            465 U.S. 367,  374 (1984); Commissioner v.  Shapiro, 424 U.S.                                       ____________     _______            614, 627 (1976); Bob Jones Univ. v. Simon, 416 U.S.  725, 737                             _______________    _____            (1974);  Lane v. United States,  727 F.2d 18,  20 (1st Cir.),                     ____    _____________            cert. denied, 469 U.S.  829 (1984).  The taxpayers  here seek            ____________            to  invoke this exception, arguing  that they satisfy both of            the  Enochs  criteria.    The district  court  (adopting  the                 ______            recommendations  of  a  magistrate-judge) disagreed,  finding            that the  taxpayers had established irreparable  harm but had            failed   to  show   that  the   government  would   under  no            circumstances  prevail.     This  determination   is  plainly            correct.       The  Enochs Court  elaborated  on  the  latter                                ______            requirement as follows:                      [T]he question of whether the Government has a                 chance of ultimately prevailing is to be determined                 on the basis  of the information available to it at                 the  time of  suit.   Only if  it is  then apparent                 that,  under the most  liberal view of  the law and                 facts,  the  United  States  cannot  establish  its                 claim,  may   the  suit   for   an  injunction   be                 maintained.            370 U.S.  at 7.  In  attempting to meet this  "heavy" burden,            McCarthy v. Marshall,  723 F.2d 1034,  1040 (1st Cir.  1983),            ________    ________            the taxpayers advance two arguments.  First, they charge that            they were coerced into  signing the stipulation, under threat            of  dismissal  of  their  petition, without  having  had  the            opportunity  to  examine  the agreement  and  the  underlying            tabulations.   The  transcripts of  the tax  court proceeding                                         -4-            undermine  this  claim.2   They  reveal  that  the threat  of            dismissal  arose--not because of  any heavy-handed tactics on            the  part of  the  IRS  or  the  court--but  because  of  the            taxpayers'  inadequate bookkeeping and their unwillingness to            produce records.  Indeed, the court refrained from dismissing            the petition even while noting that the IRS was "entitled" to            such  relief.  Supp. App.  at 52.   Furthermore, although the            taxpayers  appeared pro se, the court arranged for them to be            assisted by an attorney from a local law school's tax clinic,            who  argued on their behalf.  At  the close of the hearing at            which the agreement was  announced, the taxpayers praised the            judge.  Id. at 42.  After the judge's decision, the taxpayers                    ___            never  filed  a motion  for  reconsideration or  a  motion to            vacate or revise.  See  Tax Court Rules 161, 162.   Any claim                               ___            of coercion or duress is, at the very least, far-fetched.                 Second, the taxpayers complain  that, once the tax court            decision  issued, the  IRS  attorney destroyed  her  personal            working  papers containing  the  calculations underlying  the            stipulated agreement.  They contend that  she was required to            retain  those  papers until  the  tax  court decision  became                                            ____________________            2.  Because the district court  dismissed the complaint prior            to service  of process  on the government,  these transcripts            were not part of the record below.  The IRS, having submitted            them in a supplemental  appendix to this court, asks  that we            take judicial notice thereof.  This request is granted.  See,                                                                     ___            e.g., Fed. R. Evid.  201; Taino Lines, Inc. v.  M/V Constance            ____                      _________________     _____________            Pan Atlantic, 982  F.2d 20,  22 n.8 (1st  Cir. 1992);  United            ____________                                           ______            States v. Berzon, 941 F.2d 8, 14 n.9 (1st Cir. 1991).             ______    ______                                         -5-            final.   They  argue  that the  attorney's calculations  were            riddled with errors  and omissions.  And they  conclude that,            since all "evidence"  in support  of the IRS'  claim has  now            been destroyed, the IRS has no chance of prevailing  thereon.                 This line  of reasoning is  likewise unavailing.   It is            hardly  surprising  that  personal working  papers  would  be            disposed of once a stipulated agreement has  been reached and            entered.   Such papers are obviously not the central evidence            in support  of the IRS' claim  that back taxes are  due.  And            the  taxpayers' underlying complaint  of IRS miscalculations,            having  not   been  timely   raised,  falls  well   short  of            establishing   "that   under  no   circumstances   could  the            Government ultimately prevail."   We therefore agree with the            lower court that the Enochs exception is inapplicable.3                                 ______                 The  taxpayers' remaining arguments  can be more readily            dismissed.  First, they seek,  in the alternative, to  invoke            one of  the statutory exceptions to  the Anti-Injunction Act:            the provision in    6213(a) permitting a court to  enjoin any            assessment made  prior to  the tax court's  decision becoming            final.    As mentioned,  however,  the  taxpayers waived  the            statutory bar  on assessments being made prior  to that time.                                            ____________________            3.  Indeed,  in light of the dismissal of the appeal from the            tax court ruling, it might well be argued that the government            already has prevailed.  We need not decide,  however, whether            the  instant  matter is  moot or  is  barred on  res judicata                                                             ____________            grounds, inasmuch as it is in any event without merit.                                         -6-            Moreover, the filing of  a notice of appeal operates  to stay            the assessment or collection  of a deficiency only if  a bond            is filed  with the tax court.   See 26 U.S.C.    7485(a); Tax                                            ___            Court Rule 192.  No such bond was filed here.                   Second, the taxpayers complain  that the district  court            dismissed  their suit sua sponte prior  to service of process                                  __________            on the government.   Yet  the court's lack  of authority  was            apparent  from the face  of the  complaint.   The magistrate-            judge's  report  provided  ample  notice  of the  complaint's            deficiencies.     And   the   taxpayers  were   afforded  two            opportunities   to  correct  those   shortcomings:  first  in            objecting  to  the  magistrate-judge's report,  and  later in            asking  the  district court  to  reconsider  its judgment  of            dismissal (the  court, in  fact, granted  reconsideration and            then  reinstated its  dismissal).   We  thus need  not decide            whether  the court's sua sponte dismissal was error.  Even if                                 __________            it were, any such error was, under the circumstances, plainly            harmless.  See, e.g.,  Purvis v. Ponte, 929 F.2d  822, 826-27                       ___  ____   ______    _____            (1st Cir. 1991) (per curiam).4                                            ____________________            4.  The taxpayers  also rely  on the Shapiro  Court's holding                                                 _______            that, before the applicability of the Enochs exception can be                                                  ______            ascertained,  the government  has the obligation  to disclose            the factual basis for  its assessments.  See 424 U.S. at 626-                                                     ___            27.   That holding is  clearly inapposite.   The Shapiro case                                                             _______            involved  a jeopardy assessment  made without any opportunity            for a prompt post-seizure inquiry into the basis for the IRS'            claim.   Here,  by contrast,  the taxpayers  have had  a full            opportunity to contest the IRS' claim in tax court.                                          -7-                 Affirmed.  The motion  to amend pleading and  the motion                 ________________________________________________________            to show cause are denied.             _________________________                                         -8-
