           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 23, 2009

                                     No. 08-60907                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JOHN OLIVER GREEN

                                                   Petitioner-Appellant
v.

COMMISSIONER OF INTERNAL REVENUE

                                                   Respondent-Appellee




                      Appeal from the United States Tax Court


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner John Oliver Green appeals the tax court’s order upholding the
IRS Commissioner’s determination of income deficiencies, additions to tax, and
penalties for tax years 1997, 1999, and 2000. Specifically, Green claims (1) that
the consolidated deficiency notices were invalid as “second notices” under the
Tax Code; (2) the statute of limitations had run on the asserted deficiencies; (3)
the inclusion of disability payments as taxable income in 1997 was erroneous;
(4) collateral estoppel bars the Commissioner’s claim that the disability



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-60907

payments were taxable; (5) his disability payments were non-taxable under 26
U.S.C. §104(a)(1); and (6) the tax court violated his due process rights by
referring – in a since-deleted section –      to the unrelated case of another
individual named John O. Green. Finding no error, we AFFIRM the tax court’s
order.
         The facts underlying this case are well-summarized by the tax court.
Green received disability-retirement payments for a kidney condition that he
developed while he was a criminal investigator with the IRS. Because the
disability payments were levied to satisfy unpaid income taxes, Green ceased
providing annual income statements.          This action, in turn, caused the
administrator of his disability benefits – the Office of Personnel Management
(OPM) – to suspend payment. After Green provided income information in
interrogatories in a case before the bankruptcy court, OPM obtained the
information, reinstated Green’s retirement-disability payments, and authorized
payment of $93,305 in benefits that had accrued from July 1, 1992 through
October 31, 1997. The payment was authorized on December 16, 1997. Having
received notice of the authorization, Green informed OPM in writing on
December 19, 1997 that his disability payment was subject to a child support
order. He instructed OPM to make payments directly to his ex-wife. By letter
dated December 24, 1997, OPM advised Green that it also had been served with
an IRS levy against the annuity, and had made an initial deduction from Green’s
payment amount for the levy. The IRS and Green’s ex-wife actually received the
payments in 1998.
         Green did not file a Form 1040 tax return for tax years 1997, 1999, and
2000, instead tendering homemade documents the parties have called
“disclosure documents” for each year which claimed exemption from income




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                                     No. 08-60907

taxation due to his status as a Potawatomi Indian.1 On July 11, 2003, the IRS
mailed Green notices of deficiency for 1997, 1999, and 2000 to the wrong
address. Green became aware of the deficiency notices and filed an untimely
petition in the tax court on December 23, 2004. The Commissioner filed a
motion to dismiss the petition in order to send the notices to the correct address
and provide Green time to correctly challenge the deficiencies. On April 1, 2005,
before the previous case filed by Green was dismissed by the tax court, the
Commissioner mailed a consolidated deficiency notice, covering all three years
at issue and assessing the same deficiencies as noticed in July 2003. Green
timely petitioned the tax court, and that court affirmed the Commissioner’s
determination of deficiencies, additions to tax, and penalties.
      We review the tax court’s conclusions of law de novo, its findings of fact for
clear error, and its discretionary rulings for abuse of discretion.             Bilski v.
Comm’r, 69 F.3d 64, 67 (5th Cir. 1995).
                           Statute of Limitations
      Green asserts, for the first time on appeal, that the consolidated deficiency
notice upon which this action arose was invalid, because it constitutes a “second
deficiency notice,” in violation of 26 U.S.C. § 6212(c). That statute explains:
      If the Secretary has mailed to the taxpayer a notice of deficiency as
      provided in subsection (a), and the taxpayer files a petition with the
      Tax Court within the time prescribed in section 6213(a), the
      Secretary shall have no right to determine any additional deficiency
      of income tax for the same taxable year . . . except in the case of
      fraud, and except as provided in section 6214(a) (relating to
      assertion of greater deficiencies before the Tax Court), in section
      6213(b)(1) (relating to mathematical or clerical errors), in section
      6851 or 6852 (relating to termination assessments), or in section
      6861(c) (relating to the making of jeopardy assessments).



      1
         Those documents were filed on April 15, 1998, April 17, 2000, and April 16, 2001,
respectively.

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                                  No. 08-60907

§ 6212(c)(1); see also Jones v. United States, 889 F.2d 1448, 1450 (5th Cir. 1989).
The very terms of this provision make clear that the consolidated deficiency
notice here was not barred. The first deficiency notice was sent to the incorrect
address on July 11, 2003, and Green filed a petition contesting the asserted
deficiencies on December 23, 2004, well outside the ninety-day window provided
by 26 U.S.C. § 6213(a). Green did not “file[] a petition with the Tax Court within
the time prescribed in section 6213(a).” § 6212(c) (emphasis added). In any case,
Green admits that the Commissioner issued “a second duplicate deficiency notice
on 04/01/05, for the same amounts but with a different address.” Again, the
language of section 6212(c) shows that the bar on additional deficiency notices
applies only to claims of “additional deficiency of income tax for the same taxable
year.” Id. That did not occur here. Thus, the consolidated deficiency notice was
valid under sections 6212 and 6213.
      Green next claims that the assessment of deficiency was barred by the
three year statute of limitations set forth in 26 U.S.C. § 6501. That provision
states:
      Except as otherwise provided in this section, the amount of any tax
      imposed by this title shall be assessed within 3 years after the
      return was filed (whether or not such return was filed on or after
      the date prescribed) . . . and no proceeding in court without
      assessment for the collection of such tax shall be begun after the
      expiration of such period. For purposes of this chapter, the term
      “return” means the return required to be filed by the taxpayer (and
      does not include a return of any person from whom the taxpayer has
      received an item of income, gain, loss, deduction, or credit).

§ 6501(a). It is undisputed that the Commissioner issued the notice of deficiency
on April 1, 2005, more than three years following the submission of Green’s
“disclosure documents” for the 1997, 1999, and 2000 tax years. The sole question
is whether the disclosures submitted by Green constitute “returns” sufficient to
commence the start of the statute of limitations.


                                        4
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      It is well-settled that, for purposes of the commencement of the statute of
limitations, “[p]erfect accuracy or completeness is not necessary to rescue a
return from nullity, if it purports to be a return, is sworn to as such, and evinces
an honest and genuine endeavor to satisfy the law.” Zellerbach Paper Co. v.
Helvering, 293 U.S. 172, 180 (1934) (internal citation omitted); see also
Badaracco v. Comm’r, 464 U.S. 386, 397 (1984) (“the original returns similarly
purported to be returns, were sworn to as such, and appeared on their faces to
constitute endeavors to satisfy the law. Although those returns, in fact, were not
honest, the holding in Zellerbach does not render them nullities.”) However, the
submissions by a taxpayer must at least be a return, which 26 U.S.C. §
6103(b)(1) defines as:
      [A]ny tax or information return, declaration of estimated tax, or
      claim for refund required by, or provided for or permitted under, the
      provisions of this title which is filed with the Secretary by, on behalf
      of, or with respect to any person, and any amendment or
      supplement thereto, including supporting schedules, attachments,
      or lists which are supplemental to, or part of, the return so filed.
§ 6103(b)(1). The tax court’s test to determine if a document qualifies as a tax
return is set forth in Beard v. Comm’r, 82 T.C. 766, 777 (1984), aff’d, 793 F.2d
139 (6th Cir. 1986). It requires that a document purport to be a return, be
executed under penalty of perjury, contain sufficient data to allow calculation of
tax, and represent an honest and reasonable attempt to satisfy the requirements
of law. Id.
      We have little difficulty concluding that Green’s homemade “disclosure
documents” are not returns. They do not purport to be returns; in fact, they
state that they are tendered to the IRS because “no return of tax is required to
be filed.” Although they claim to be signed “under penalties of perjury,” they do
not include the jurat language found in standard IRS forms and typically
required of a valid return. See Williams v. Comm’r, 114 T.C. 136, 142-43 (2000)



                                         5
                                   No. 08-60907

(refusing to allow taxpayers to change or add to the language of the jurat). It is
unclear what “signed under penalties of perjury” means without additional
language attesting that the information contained in the document is true,
correct, and complete.
      In addition, the information within Green’s documents is insufficient to
permit calculation of tax; indeed, the very purpose of the disclosures is to avoid
the calculation and imposition of tax. Green simply provided a footnote – in
minuscule font – asserting figures for net and gross business income, dividends,
net short-term capital gain, and “ordinary partnership loss.” 2 The disclosure
contains no information regarding his marital status, exemptions, or deductions;
all of which compels us to conclude that there is insufficient data to calculate tax
liability. See, e.g., Galuska v. Comm’r, 98 T.C. 661, 670 (1992), aff’d, 5 F.3d 195
(7th Cir. 1993).
      Furthermore, the tax court did not clearly err in concluding that Green did
not honestly and reasonably attempt to satisfy the tax law, especially given
Green’s training as an IRS criminal investigator and attorney, his history of
avoiding income taxes, and the tax court’s 1993 admonition that he was not
exempt from federal income taxes due to his membership in the Potawatomi
Citizens Band Tribe of Oklahoma. See Green v. Comm’r, T.C. Memo 1993-152
(1993), aff’d, 33 F.3d 1378 (5th Cir. 1994) (unpublished opinion). Accordingly,
the statute of limitations did not bar the tax assessments at issue.
                          Disability Retirement Pay
      Green next claims that the tax court erred in finding taxable for the 1997
tax year the $93,305 in disability payments that had been suspended when he
ceased submitting income statements to OPM. First, he states that he did not
receive the payment in 1997 and, accordingly, it was incorrectly assessed against

      2
        The tax court stated succinctly, “We also don’t believe the IRS should need a
magnifying glass to do its job.”

                                         6
                                       No. 08-60907

him for that tax year.3 The statute requires a cash-basis taxpayer such as Green
to report income in the year he receives it, even if the money goes directly to pay
off the taxpayer’s debt to a third party.             See 26 U.S.C. § 451(a); Bank of
Coushatta v. United States, 650 F.2d 75, 77 (5th Cir. Unit A 1981) (“A taxpayer
is considered in ‘constructive receipt’ of income if it is available to him without
any substantial limitation or restriction as to the time or manner of payment or
condition upon which payment is made, and the Commissioner will assess taxes
on the basis of this income under [§] 61.”) (citation omitted). The treasury
regulations explain:
       Income although not actually reduced to a taxpayer’s possession is
       constructively received by him in the taxable year during which it
       is credited to his account, set apart for him, or otherwise made
       available so that he may draw upon it at any time, or so that he
       could have drawn upon it during the taxable year if notice of
       intention to withdraw had been given. However, income is not
       constructively received if the taxpayer’s control of its receipt is
       subject to substantial limitations or restrictions.
26 C.F.R. § 1.451-2(a). Here, the tax court found as fact that OPM approved a
payment of $93,305 (reduced by deductions totaling $93,304) no later than
December 16, 1997. A few days later, Green responded to OPM’s notice by
asserting that he owed child support debts to his ex-wife and instructing OPM
to pay his ex-wife directly. The record evidence further establishes that on
December 24, 1997, OPM sent Green a letter stating that money for an IRS levy
was being deducted from his initial annuity payment. Indeed, Green stipulated
all of these facts before the tax court. That the payment was not actually made
to the IRS and Green’s ex-wife until 1998 is not dispositive, since the income was
set apart for Green in 1997. See, e.g., Amos v. Comm’r, 47 T.C. 65, 69 (1966). We



       3
         The tax court perceptively recognized that Green’s tactical failure to contest his 1998
notice of deficiency, combined with his claim that the $93,305 was properly taxable in that
year, would result in him wholly avoiding taxation on that income.

                                               7
                                       No. 08-60907

find persuasive as evidence of constructive receipt that by December 19, 1997,
the income was sufficiently available to Green that he had the authority to
instruct OPM to pay his ex-wife directly. Accordingly, the tax court did not err
in concluding that lump-sum payment was taxable in 1997.
       Green also asserts that the deficiency was based on a “naked assessment,”
and, therefore, was invalid. The Commissioner’s determination of a deficiency
is generally afforded a presumption of correctness. Yoon v. Comm’r, 135 F.3d
1007, 1012 (5th Cir. 1998). However, the presumption of correctness does not
apply where the government’s assessment is without any foundation whatsoever;
that is, when it is a naked assessment. See Portillo v. Comm’r, 932 F.2d 1128,
1133-34 (5th Cir. 1991).4 Here, Green suggests that his failure to file proper
returns, which resulted in the Commissioner’s reliance upon the OPM’s Form
1099, makes the Commissioner’s deficiency notice a naked assessment.
       Green’s argument is much like the petitioner’s unsuccessful argument in
Parker v. Comm’r, 117 F.3d 785, 786-87 (5th Cir. 1997). There, like here, a
petitioner who failed to file income tax returns claimed that the IRS’s
determinations were arbitrary because they were based wholly upon 1099 and
W-2 forms submitted by third party payors. Id. at 786. Distinguishing Portillo,
this Court explained:
       In Portillo, the Commissioner’s determination was arbitrary because
       the Commissioner offered no factual basis for accepting one sworn
       statement, the Form 1099, while rejecting another sworn statement,
       the taxpayer’s Form 1040. Portillo did not hold that the IRS must
       conduct an independent investigation in all tax deficiency cases. In
       this case, the Commissioner has not arbitrarily found the
       third-party forms credible: the Parkers never filed a Form 1040 or
       any other document in which they swore that they did not receive


       4
         “‘The tax collector’s presumption of correctness has a herculean muscularity of
Goliathlike reach, but we strike an Achilles’ heel when we find no muscles, no tendons, no
ligaments of fact.’” Portillo, 932 F.2d at 1133 (quoting Carson v. United States, 560 F.2d 693,
696 (5th Cir. 1977)).

                                              8
                                         No. 08-60907

       the payments in question. The Commissioner has no duty to
       investigate a third-party payment report that is not disputed by the
       taxpayer.

Id. at 787. As in Parker, Green claims as arbitrary the Commissioner’s decision
to rely upon OPM’s 1099 form in the absence of any tax return or contrary
evidence. However, Green does not argue that the information within the 1099
was without foundation, nor that OPM’s submission was unreliable.
Accordingly, the deficiency notice was not arbitrary, and does not require
abandonment of the presumption of correctness.
       Green also challenges the tax treatment of his disability-retirement
payments, claiming that such taxation was inappropriate because (1) collateral
estoppel bars it; and (2) the payments were excludable from his income under §
104(a)(1).5 The Commissioner correctly notes that issue preclusion does not
apply here. We have explained:
       Issue preclusion, or collateral estoppel . . . promotes the interests of
       judicial economy by treating specific issues of fact or law that are
       validly and necessarily determined between two parties as final and
       conclusive. Issue preclusion is appropriate only if the following four
       conditions are met. First, the issue under consideration in a
       subsequent action must be identical to the issue litigated in a prior
       action. Second, the issue must have been fully and vigorously
       litigated in the prior action. Third, the issue must have been
       necessary to support the judgment in the prior case. Fourth, there
       must be no special circumstance that would render preclusion
       inappropriate or unfair. If these conditions are satisfied, issue
       preclusion prohibits a party from seeking another determination of
       the litigated issue in the subsequent action.



       5
        Green states, in conclusory fashion, that “[n]on-taxation in this case can also be found
under other provisions of § 104 or § 105.” However, he fails to argue for the applicability of
any section other than 104(a)(1) in his opening brief. Accordingly, his claims of excludability
under sections 104(a)(2), 104(a)(3), 105(a), and 105(c), which were raised before the tax court,
are waived. See FED . R. APP . P. 28(a)(9); United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir.
1989).

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                                         No. 08-60907

United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994) (internal citations
omitted).
       Here, however, the taxability of Green’s disability-retirement annuity was
not litigated in his prior proceeding over a 1983 tax return – vigorously or
otherwise. The Commissioner simply conceded the adjustment in the case about
the 1983 return, and it was not necessary to a final judgment.6 Indeed, even if
it was necessary to the judgment, this Court has explained, “[w]hen one party
to a tax case concedes or stipulates the issue upon which the court bases its
judgment, the issue is not conclusively determined for purposes of collateral
estoppel unless it is clear that the parties so intended.” Anderson, Clayton & Co.
v. United States, 562 F.2d 972, 992 (5th Cir. 1977).               Anderson, Clayton & Co.
relied upon the holding of United States v. Int’l Bldg. Co., 345 U.S. 502, 506
(1953), where the Supreme Court held that tax judgments based on consent
agreements between taxpayers and the government do not collaterally estop
litigation on the same issue for later tax years.                 Id.   The Supreme Court
explained “that unless the prior judgment was ‘an adjudication [of] the merits,
the doctrine of estoppel by judgment would serve an unjust cause: it would
become a device by which a decision not shown to be on the merits would forever
foreclose inquiry into the merits.’” Anderson, Clayton & Co., 562 F.2d at 992




       6
          See Green v. Comm’r, T.C. Memo 1993-152, at *1 (“After concessions, the issues for
decision are: (1) Whether petitioner’s delivery of his 1983 tax return to an agent of the Internal
Revenue Service (IRS) is sufficient to constitute a filing for purposes of section 6501, and if so,
whether the 3-year statute of limitations under section 6501 bars assessment of tax in this
case; (2) whether petitioner, a member of the Potawatomi Citizens Band Tribe of Oklahoma,
is exempt from paying Federal income tax due to his Indian status; (3) whether respondent
utilized grand jury matter in violation of rule 6(e) for civil audit purposes, including the
preparation of the statutory notice of deficiency involved herein; (4) whether petitioner
underreported his taxable income in 1983 as determined by respondent; (5) whether
petitioner’s understatement of tax is attributable to fraud under section 6653(b)(1) and (2); and
(6) whether petitioner is liable for the addition to income tax for failure to pay estimated tax
under section 6654.”).

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                                     No. 08-60907

(quoting Int’l Bldg. Co., 345 U.S. at 506). Accordingly, collateral estoppel does
not apply.
      Green argues that his disability-retirement pay should be excluded from
his income under § 104(a)(1), urging that the payments were for personal
injuries which are in the nature of workmen’s compensation. Section 104(a)(1)
states:
      Except in the case of amounts attributable to (and not in excess of)
      deductions allowed under section 213 (relating to medical, etc.,
      expenses) for any prior taxable year, gross income does not include
      . . . amounts received under workmen’s compensation acts as
      compensation for personal injuries or sickness[.]

§ 104(a)(1).   The accompanying regulations allow exclusion if the taxpayer
receives the pay “under a statute in the nature of a workmen’s compensation act
which provides compensation to employees for personal injuries or sickness
incurred in the course of employment.” 26 C.F.R. § 1.104-1(b). “A taxpayer has
the burden of proving entitlement to the § 104(a) exclusion.” Stanley v. United
States, 140 F.3d 890, 891 (10th Cir. 1998) (citing Welch v. Helvering, 290 U.S.
111, 115 (1933)). Take v. Comm’r, 804 F.2d 553, 557 (9th Cir. 1986), explains
that section 104(a) applies only where a workmen’s compensation statute
requires that the injury be incurred in the course of employment. Id. “Statutes
that do not restrict the payment of benefits to cases of work-related injury or
sickness are not considered to be ‘workmen’s compensation acts’ under section
104.” Id. (citing Rutter v. Comm’r, 760 F.2d 466, 468 (2d Cir. 1985)); see also
Wallace v. United States, 139 F.3d 1165, 1167 (7th Cir. 1998).
      Here, Green devotes significant attention to the tax court’s apparently
erroneous conclusion that his injury was congenital and, thus, not incurred
during his employment with the IRS. 7 Whatever the basis of the disability

      7
        Green cleverly argues that he became disabled during his employment at the IRS; he
never claims – and the record does not establish – that he became disabled due to a work-

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                                     No. 08-60907

payments, both Green and the Commissioner agree that they came from OPM’s
Retirement and Disability Fund (“CSRA”), 5 U.S.C. § 8348.8 See Merker v.
Comm’r, T.C. Memo 1997-277 (1997) (“The relevant inquiry is into the nature of
the statute pursuant to which the payment is made and not the source of the
particular taxpayer’s injury.”) As the tax court noted, the CSRA allows disability
retirement whether or not the injury occurred on the job. See Haar v. Comm’r,
78 T.C. 864, 868 (1982), aff’d 709 F.2d 1206 (8th Cir. 1983). Accordingly, section
104(a)(1) does not exempt this payment from taxable gross income.
                           Due Process Claim
      Finally, Green argues that the tax court’s erroneous reference to the case
of another individual, also named John O. Green, was a due process violation.
The tax court’s incorrect reference to the other John O. Green was made in order
to illustrate the petitioner’s history of attempting to avoid income tax. A day
after the release of the tax court’s ruling, the court struck the incorrect language,
and explained that the correction “changes neither the analysis nor the outcome
of the case.”
      It is clear from the tax court’s references to Green’s interactions with the
criminal justice system and prior attempts at income tax avoidance that the
incorrect information did not particularly prejudice the court; in fact, the tax
court explicitly stated that the incorrect information had not impacted its
analysis nor the outcome. We do not believe that this error – immediately
corrected by the tax court – constitutes a due process violation.



related injury. That the disability was not the result of a congenital defect and happened
while he was employed by the IRS does not make it “work-related.”
      8
         Green argued before the tax court that his benefits were approved pursuant to the
Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8147. However, the tax court
found that the benefits were received under the CSRA. Green does not particularly challenge
this conclusion; instead, he appears to claim that he qualified under both the CSRA and the
FECA, and his disability was paid under the CSRA because it provided a greater benefit.

                                            12
                         No. 08-60907

Accordingly, the ruling of the tax court is AFFIRMED.




                               13
