Cabazon Indian Casino v. Internal Revenue Service (In Re Cabazon Indian Casino)

57 B.R. 398, 1986 Bankr. LEXIS 6764, 13 Bankr. Ct. Dec. (CRR) 1348

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: February 5, 1986
• Docket: BAP CC-85-1006-MVAb
• Status: Published

Opinions

MEYERS, Bankruptcy Judge:

The Appellant, Cabazon Indian Casino (“Casino”), which is a Chapter 11 Debtor-in-Possession, claimed an exemption from federal unemployment tax and the employer’s portion of the social security tax by virtue of the Casino’s status as an Indian tribe. The Casino also objected to the imposition of penalties for failure to pay these taxes. The trial court held that the Casino was not exempt from these taxes or from the penalties for failure to pay them. We AFFIRM.

I.

FACTS

The Cabazon Band of Mission Indians is a federally recognized Indian tribe. The Cabazon Band exercises governmental functions pursuant to Articles of Association approved by the Department of the Interior. These Articles authorized the Band to manage its economic affairs, including the establishment and operation of commercial enterprises.

Pursuant to these powers, in October of 1980, the Cabazon Band established on the reservation the Cabazon Indian Casino, an unincorporated company.¹ The Casino consists of a card parlor, restaurant and bar. Tribal ordinance regulates the playing of card games. This tribal enterprise employs approximately 75 employees whose wages are paid from Casino revenues.

The Casino is located on tribal trust land on the Cabazon Indian reservation which was established pursuant to the Mission Indian Relief Act, 26 Stat. 712, ch. 65 (1891). Consisting of arid desert land, the reservation contains no known mineral deposits or other natural resources and is unsuited for agricultural purposes. The Band uses the Casino revenues to provide government services to its members. Prior to operation of the Casino, the Band’s land produced no income.

No tax returns had been prepared by the Casino until after the bankruptcy petition was filed. On February 4, 1983, the Internal Revenue Service filed its Proof of Claim for federal withholding taxes (FICA), 26 U.S.C. §§ 3101-3126, and unemployment taxes (FUTA), 26 U.S.C. §§ 3301-3311. FICA taxes were claimed for the first, second, third and fourth quarters of 1981 for a total of $181,530.24 consisting of taxes in the amount of $144,190.61, interest of $5,787.10 and penalties of $31,552.53. The Internal Revenue Service also claimed FUTA taxes for the period ending December 31, 1981, of $5,614.11. This consisted of tax in the amount of $3,048.42, interest of $1,285.35 and penalties of $1,280.34.

On May 16, 1984, the Casino filed an objection to the claim. There were two grounds for this objection: (1) the Band was exempt from these taxes as a state or political subdivision of a state under 26 (b)(7) and 3306(e)(7); and (2) the Band was exempt under the Mission Indian Relief Act. Additionally, the Casino claims that penalties should not be imposed under 26 U.S.C. § 6651, since the taxpayer claimed reasonable cause justifying its failure to file. The trial court rejected these arguments and allowed the claim.

II.

DISCUSSION

The language of both FICA (Federal Insurance Contribution Act) and FUTA (Federal Unemployment Tax Act) that imposes taxation on an employer is very broad. A FICA excise tax is imposed on “every employer” under 26 U.S.C. § 3111, based on wages paid to individuals in one’s employment. Similarly, a FUTA excise tax is imposed on “every employer” under 26 U.S.C. § 3301.

Both FICA and FUTA contain an identically worded definition of employment. “The term ‘employment’ means any service, of whatever nature, performed ... by an employee for the person employing him.” 26 U.S.C. §§ 3121(b) and 3306(c). Further, both FICA and FUTA contain an identically worded exception to these excise taxes for a state or any political subdivision thereof. 26 U.S.C. §§ 3121(b)(7) and 3306(c)(7). There is no specific mention of Indian tribes in any of the FICA or FUTA provisions.

The Ninth Circuit Court of Appeals has held that Indians and Indian tribes are not entitled to exemptions from federal taxation unless they fall within an express exemption or their income is directly derived from tribal lands. Confederated Tribes of Warm Springs Reservation v. Kurtz, 691 F.2d 878, 881 (9th Cir.1982). See also Critzer v. United States, 597 F.2d 708, 711-12, 220 Ct.Cl. 43 (1979) (en banc).

A. AN INDIAN TRIBE IS NOT A STATE OR INDEPENDENT SOVEREIGN

We turn first to the argument that the Cabazon Band is exempt from these excise taxes because they fall within the express exemptions accorded to states and their instrumentalities. The Cabazon Band admits that neither the Internal Revenue Code nor its legislative history mentions either Indians or tribes. Nevertheless, it is argued that Indian tribes should be construed to be states because they are governmental entities with sovereign powers over both their members and their territory-

Indian tribes retain some attributes of sovereignty which the tribes exercise over both their members and territory. However, the Supreme Court has consistently found that Indian tribes are not states. The status of the tribes has been described as:

an anomalous one and of complex character, for despite their partial assimilation into American culture, the tribes have retained a semi-independent position ... not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the state within whose limits they resided.

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980).

Further, the Supreme Court in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148, 102 S.Ct. 894, 907, 71 L.Ed.2d 21 (1982), stated that Indian sovereignty is different from that of federal, state or local governments. While an Indian tribe has attributes of sovereignty, it is not a state. Thus, it cannot claim the exemption from excise taxes that is accorded to a state.

Further, Indian tribes were not mentioned in either FICA or FUTA. The Ninth Circuit, in holding that Indian tribes were not exempt from federal excise taxes on fuel and motor vehicles, refused to find that Indian tribes qualified under a similar exemption for states. Confederated Tribes, supra, 691 F.2d at 880.²

We must also reject the argument that an Indian tribe can qualify for an exemption as a local government, claiming the status of an instrumentality of a state. The Ninth Circuit Court of Appeals in Confederated Tribes, held that a tribe is not a political subdivision of a state. “It derives no authority from the state ... The state and the Tribe each functions within its proper sphere. Neither is a creature of the other.” 691 F.2d at 880.³

B. THERE ARE NO IMPLICIT EXCEPTIONS TO THE TAX CODE

Lacking an express exemption under the Internal Revenue Code, the Caba-zon Indian Band would have us construe FICA and FUTA to exempt the Band from taxation because of an expressed policy of Congress and the Administration to foster tribal self-determination and economic development. Ambiguous statutes and treaties are to be construed in favor of Indians. Confederated Tribes, supra, 691 F.2d at 881; United States v. Anderson, 625 F.2d 910, 913 (9th Cir.1980). However, the Supreme Court has repeatedly held that tax exemptions are not granted by implication. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 156, 93 S.Ct. 1267, 1274, 36 L.Ed.2d 114 (1973). A court is not free to create ambiguities in order to construe them in favor of the interests of Indians. Confederated Tribes, supra, 691 F.2d at 881. See also Fry v. United States, 557 F.2d 646, 649 (9th Cir.1977). Further, the Ninth Circuit has held that silence alone cannot create an implied immunity from federal excise taxes. Confederated Tribes, supra, 691 F.2d at 880-882. Thus, no matter how persuasive the policy argument, we are not free to create an exemption in FICA or FUTA without express language.

C. NO TREATY EXEMPTION EXISTS

Our inquiry is not limited simply to an examination of the Internal Revenue Code. Federal statutes and treaties dealing with particular Indian tribes can grant an exemption from federal taxation. Squire v. Capoeman, 351 U.S. 1, 6, 76 S.Ct. 611, 614, 100 L.Ed. 883 (1956). Courts will imply a tax exemption from a statute or treaty that contains express exemptive language. 351 U.S. 1 at 6-9. We, therefore, examine the Mission Indian Relief Act of 1891, 26 Stat. 712, ch. 65, under which the Cabazon Band’s reservation was created. This Act, unlike the Act analyzed in Confederated Tribes, does contain a tax exemption for income derived directly from the land, but it does not contain an exemption from excise taxes.

The Mission Indian Relief Act reads in pertinent part: “The United States will convey the same [land] by patent to the said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever.” 26 Stat. at 713, Sec. 5. While this statutory provision is not expressly couched in terms of nontaxability, the Supreme Court has interpreted almost identical language to confer immunity from income tax and capital gains taxes. Squire v. Capoeman, supra, 351 U.S. at 6-7, 76 S.Ct. at 614-615. The Supreme Court held that the exemption accorded tribal and restricted Indian lands extends to the income derived directly therefrom. The purpose of the exemption inherent in restricted Indian land was to prepare the Indian to take his place as a qualified member of the body politic. To that end it was necessary to preserve the land held in trust and the income derived directly from that land, “but it is not necessary to exempt reinvestment income from tax burdens” (emphasis added). 351 U.S. at 9, 76 S.Ct. at 616.

The Ninth Circuit has held that Section 5 of the Mission Indian Relief Act has the same effect as to taxability of allotted lands as Section 6 of the General Allotment Act which was the act construed in Squire v. Capoeman. Kirkwood v. Arenas, 243 F.2d 863, 866 (9th Cir.1957). Thus, it is clear that the land of the Cabazon Band and the income derived directly therefrom is free from taxation.

The question remains as to whether an excise tax imposed on an Indian Band for its casino employees is a tax on income derived directly from the land. To the extent that this question involves a tax imposed directly on the Tribe, it is a case of first impression.

The tax exemption for income derived directly from the land has been construed rather narrowly by the courts. The Supreme Court in Squire v. Capoeman, held that this exemption did not apply to reinvestment income for an individual Indian.

What constitutes income derived directly from tribal lands was analyzed most exhaustively in Critzer v. United States, supra, 597 F.2d 708, relied upon by the trial court. The Critzer court held that income realized by an Indian landholder was not exempt from income tax simply because the business and building which generated the income was located on tax-exempt Indian reservation land. In Critzer, the taxpayer was an Indian who operated a motel, restaurant, and gift shop, all of which were situated on reservation land. The Critzer court found that the income was not generated out of the land alone. While the land was necessary, the income was generated by the labor of the taxpayer, her employees and by reinvested income invested in the property. It concluded, therefore, that the income was not directly connected to the land.

The same reasoning applies to the Caba-zon Indian Casino. The income derived from operating the casino stems in a far more important fashion from card playing, liquor sales and food preparation, than it does from the land alone. Indeed, apart from the capital improvements on the land, there would be little if any income derived directly from the land itself.⁴

Also, this Panel is persuaded by the same policy considerations that influenced both the Critzer court and the trial court. In Critzer, the court found that it would be ludicrous to argue that all income derived from any business conducted on tribal land was immune from taxation simply because the land itself was immune from taxation. 597 F.2d at 713. Otherwise, any business conducted on tribal land would be exempt, for any income producing activity must have some relationship to the land. As the Critzer court stated:

The benefits sought by the instant taxpayer were designed, many years ago, to shield an oppressed and unsophisticated people. Congress could not have intended that its laws would be used as a sword by which one group of businessmen could obtain perpetual and total tax shelters that are unavailable to all others, including Indians who have left their reservations to establish businesses elsewhere.

597 F.2d at 714

Similarly, the court in Hale v. United States, 579 F.Supp. 646, 648 (E.Wash.1984), held that income an Indian derived from the lease of allotted land and a small building on it which was used as a smokeshop was not tax-exempt. To be directly derived from the land, income must be from the exploitation of the land itself by mining, logging, agriculture or similar activity, not just the land’s location. Accord, Cross v. Commissioner, 83 T.C. 561, 568 (1984).

Although the Critzer court and the Hale court dealt with individual taxpayers and not with a tribe, we adopt the reasoning of these two courts to hold that the income generated by the Casino is not directly derived from the land. Therefore, we hold that excise taxes under FICA and FUTA may be imposed. If the Panel were to hold otherwise, it would have to find that virtually any activity conducted by the Cabazon Indian Band on their land would be tax-exempt.

D. THE BAND IS LIABLE FOR PENALTIES AND INTEREST

The trial court imposed penalties and interest for the Tribe’s failure to file tax returns and to pay excise taxes under 26 U.S.C. §§ 6601 and 6651.

Under Section 6601, payment of interest on the underpayment of tax is required. There is no provision in the statute for an exception.

There is a provision for an exception from the penalty for failure to file a tax return under Section 6651. This penalty will not be imposed if “it is shown that such failure is due to reasonable cause and not due to, willful neglect.” 26 U.S.C. § 6651. The trial court found that the Cabazon Band had not made this showing.

It is true that a taxpayer should not be penalized for making an honest effort upon reasonable grounds to avoid what he in good faith believes to be an unreasonable extraction. Economy Savings & Loan Co. v. Commissioner, 158 F.2d 472, 474-475 (6th Cir.1946). Also, considerations that are not adopted by a court can constitute reasonable cause and thus avoid penalties. In construing what constitutes “reasonable cause” for failure to file, courts have given great weight to the complexity of the legal issues involved. Dillin v. Commissioner, 56 T.C. 228, 248 (1971). Here the underpayment was due to an intentional disregard of established rules and regulations.

One is not free to ignore established case law. The entire body of legal authority is clearly against the Casino’s position. Arguments urging us to ignore precedent, however ingenous and even though adopted by the dissent, cannot serve as the basis for finding that the trial court abused its discretion in imposing penalties. Arguing that case law such as Critzer was wrongly decided violates the Dillin test by intentionally disregarding established law. 56 T.C. at 248. Otherwise, any party that can develop plausible policy arguments, even in settled areas of tax law, would be free to speculate in litigation at the government’s expense without fear of penalty.

Given case law such as Critzer, the legal issues decided today were not of great complexity.⁵ The record below indicates that failure to file tax returns was based on an intentional disregard of the law and was not based on reasonable cause.⁶

In its statement of financial affairs filed on December 19, 1981, the Band stated, “No tax returns have been prepared since the commencement of the business; petitioner claims it has sovereign immunity as to income tax, however other taxes are believed to be due.” Only after the government filed its claim did the Cabazon Band have accounting work done to determine which taxes they should be paying. Only after this work was finished in May of 1984 did the Band object to the IRS’s claim. We would be more sympathetic to the Band’s argument that reasonable cause existed if the Band had analyzed its rights before failing to file tax returns, not three years after its failure to do so.

The decision of the trial court is AFFIRMED.

1 . From the record it appears that the status of the Casino is that of an unincorporated corporation. However, nothing turns on such an unusual status. The Supreme Court has dealt with a similar situation in Mescalero Apache Tribe v. Jones, where that court stated that:

"It is unclear from the record whether the Tribe has actually incorporated itself as an Indian chartered corporation pursuant to section 477 ... In any event, the question of tax immunity cannot be made to turn on the particular form in which the Tribe chooses to conduct its business.”

411 U.S. 145, 157 n. 13, 93 S.Ct. 1267, 1275 n. 13, 36 L.Ed.2d 114 (1973).

2 . It is worth noting that Confederated Tribes has been reversed by statute. 26 U.S.C. § 7871 (1984) allows the Secretary of the Treasury in consultation with the Secretary of the Interior to determine that an Indian tribe shall be treated as a state for purposes of exemption from certain excise taxes. The excise taxes involved are carefully enumerated. The Cabazon Band admitted that they have no exemption from FICA and FUTA taxes under Section 7871. In addition, for an exemption to apply under Section 7871 for any particular transaction, the tribe must be acting in exercise of a governmental function. A casino cannot so qualify. Passage of Section 7871 by Congress indicates that Congress knows how to exempt an Indian tribe from excise taxes. Congress chose only to exempt Indian tribes from certain excise taxes and then only in some instances.

3 . The Ninth Circuit held that an entity will qualify as an instrumentality of a state for purposes of federal excise tax exemption only if it possesses at least some portion of the state's sovereign powers or performs traditional government functions. Washington State Dairy Products Commission v. United States, 685 F.2d 298, 300 (9th Cir.1982). It is clear that the Casino does not and cannot qualify as an instrumentality of any state government. Unlike state governments "the right of tribal self-government is ultimately dependent on and subject to the broad power of Congress.” White Mountain Apache Tribe, supra, 448 U.S. at 143, 100 S.Ct. at 2583.

The argument that Indian tribes are treated as local governments under statutes other than the Tax Code is unpersuasive. Indian tribes have been treated as local governments under the National Housing Act of 1937, 50 Stat. 888, and under 25 U.S.C. § 293a, which involves transfer of Indian school lands to local governments. Classifications made by Congress under other statutes are not controlling in tax cases. Confederated Tribes, supra, 691 F.2d at 880, fn. 1.

4 . Since this case involves the taxation of an Indian tribe, not an individual Indian, the Cabazon Band has cited several Revenue Rulings which state that Indian tribes and Indian corporations are not taxable on income derived from activities carried on within boundaries of the reservation. Rev.Rul. 67-284 and Rev.Rul. 81-295. However, the statement that "income tax statutes do not tax Indian tribes”, Rev.Rul. 67-284, was made without any supporting citation. After Confederated Tribes, such a policy in regard to excise taxes is clearly not the law in the Ninth Circuit. Additionally, Revenue Rulings do not have the force of law. An erroneous Revenue Ruling cannot in and of itself bar the United States from collecting a tax otherwise lawfully due. Washington State Dairy Products Commission, supra, 685 F.2d at 300; Confederated Tribes, supra, 691 F.2d at 881, fn. 2.

5 . The relevant decisions all undercut the position of the Cabazon Band. See Confederated Tribes, supra, 691 F.2d 878; Critzer, supra, 597 F.2d 708. A case relied upon heavily by the Cabazon Band, Wisconsin Winnebago Business Comm. v. Koberstein, 762 F.2d 613 (7th Cir.1985), does not change this result. Therein, the Seventh Circuit interpreted a statute, 25 U.S.C. § 81, that does not deal with taxation. Under 25 U.S. § 81, all contracts that are "relative to their [Indian] lands” must first be approved by the Department of the Interior. The Seventh Circuit held that a contract to run a bingo game was relative to the land. This test is less stringent than the “directly derived” test since it can include things that are indirectly related to the land.

6 . An appellate court is reluctant to reverse a trial court on the determination of whether a party has made a sufficient showing to establish reasonable cause and thus avoid a penalty. Belser v. C.I.R, 174 F.2d 386, 391 (4th Cir.1949), Paymer v. C.I.R., 150 F.2d 334, 337 (2nd Cir.1945). The Second Circuit in Paymer has found that the determination of whether or not reasonable cause has been shown turns upon the particular circumstances of the case presented and, thus, is not a reviewable issue. 150 F.2d at 337. Accord, Belser, supra, 174 F.2d at 391.