USCA1 Opinion
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 95-2180
LAUREL A. FOREST,
Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent.
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ON APPEAL FROM THE DECISION OF
THE UNITED STATES TAX COURT
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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_____________________
Joseph A. Kelly, with whom Carroll, Kelly & Murphy, Charles
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J. Reilly, Reilly Law Associates, Inc. and Robert E. Hardman were
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on brief for petitioner.
Kenneth W. Rosenberg, with whom Loretta C. Argrett,
______________________ _____________________
Assistant Attorney General, Gary R. Allen, Bruce R. Ellisen and
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Kevin M. Brown, Attorneys, Tax Division, Department of Justice,
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were on brief for respondent.
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December 18, 1996
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TORRUELLA, Chief Judge. Petitioner-Appellant Laurel A.
TORRUELLA, Chief Judge.
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Forest ("Taxpayer") appeals the income tax deficiency found by
the Commissioner of the Internal Revenue Service ("Commissioner")
and affirmed by the Tax Court. See Forest v. Commissioner, T.C.
___ ______ ____________
Memo. 1995-377. In the spotlight is Section 104(a)(2) of the
Internal Revenue Code ("Code"), which provides that "any damages
received . . . on account of personal injuries or sickness" be
excluded from gross income.1 The Tax Court upheld the
Commissioner's determination that a portion of the $2,000,000
Taxpayer received in settlement of her personal injury claim
should be characterized as prejudgment interest and included in
gross income. Taxpayer now seeks review of that decision. For
the reasons stated below, we affirm. We do not reach, because
they have been waived, issues concerning whether prejudgment
interest in a settlement of a tort action is excludable as a
matter of federal law.
BACKGROUND
BACKGROUND
The pertinent facts, some of which have been stipulated
and incorporated in the Tax Court's findings, and others, which
we draw from the record, are not in dispute.
On March 9, 1982, Taxpayer fractured her back when she
slipped and fell inside her employer's walk-in refrigerator.
During 1985, she brought a products liability action against the
manufacturer of the refrigerator, Bohn Refrigeration Products
____________________
1 Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for 1992. Internal Revenue Code,
26 U.S.C. 1 et seq. (1988 & Supp. 1991).
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("Bohn"), in the Superior Court of Rhode Island. See Forest v.
___ ______
Bohn Refrigeration Prods., Civil Action No. 85-0666 (R.I.
___________________________
Superior Court, Providence, Sc.). Following a trial, the jury
returned a verdict on September 18, 1991, in favor of Taxpayer
for $2,600,000, less ten percent for contributory negligence, for
a total award of $2,340,000. In addition, pursuant to Rhode
Island General Laws section 9-21-10 (1985), statutory prejudgment
interest of twelve percent was added to the jury award. The
total judgment, including interest, was $5,007,600. The interest
constituted 53% of the total judgment.
On September 27, 1991, Bohn filed a motion for a new
trial. On October 15, following a hearing on the motion, the
Superior Court found that the jury's award "shocked the
conscience" and ordered a new trial on the issue of damages
unless Taxpayer agreed to a remittitur of $1,000,000 on or before
November 15, 1991. Two days later, Taxpayer consented to and
filed the $1,000,000 remittitur and the Superior Court entered a
judgment for Taxpayer against Bohn in the amount of $1,440,000
(i.e., $1,600,000 less ten percent contributory negligence), plus
interest and costs. Statutory prejudgment interest of twelve
percent was added to the judgment, this time in the amount of
$1,641,600, resulting in a total judgment of $3,081,600. Again,
the interest constituted 53% of the total judgment. Then, on
October 30, 1991, Bohn, not satisfied with the new result,
appealed the judgment to the Rhode Island Supreme Court.
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During the pendency of the appeal, Bohn settled the
case with Taxpayer on December 19, 1991. In return for a General
Release ("Release") by Taxpayer of all claims for personal
injuries, Bohn agreed to pay Taxpayer $2,000,000. The Release
did not provide for any allocation of the settlement proceeds
between damages and interest (or costs for that matter). During
the settlement negotiations, the parties neither discussed
whether any portion of the settlement proceeds should be
allocated to interest nor stated that none of the settlement
proceeds represented interest -- interest was simply not
discussed, neither during the negotiations nor in the Release.
On December 19, 1991, and in accordance with the terms
of the General Release, Aetna Casualty issued a check in the
amount of $2,000,000 to Taxpayer and her attorneys. On December
23, 1991, Bohn withdrew its appeal and the parties entered into a
Satisfaction Stipulation ("Stipulation") in the Superior Court
for the purpose of removing the case from the Superior Court's
docket. The Stipulation stated:
The judgment entered by this Court on
October 17, 1991[,] in the amount of
$1,440,000, plus interest and costs, has
been fully satisfied.
The parties did not consider the tax consequences of the
Stipulation. The Clerk of the Superior Court did not add
interest to the settlement of $2,000,000.
During 1992, Taxpayer's attorneys issued a check to
Taxpayer in the amount of $1,256,511.36, representing her share
of the settlement proceeds after deducting $668,489 in legal fees
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and costs. Taxpayer neither reported any portion of the
$2,000,000 settlement on her 1992 federal income tax return nor
claimed any deductions for legal fees and costs stemming from the
lawsuit. There was uncontroverted testimony that Taxpayer never
received a Form 1099 documenting interest income from Aetna
Casualty.
In its February 3, 1994, notice of deficiency, the
Commissioner determined a deficiency in Taxpayer's gross income
for the taxable year 1992 in the amount of $137,459. The
Commissioner determined that the deficiency was based upon
Taxpayer's failure to included in her 1992 gross income the
additional interest income from the settlement in the amount of
$560,000. This figure represented the difference between the
settlement proceeds ($2,000,000) and the damage award
($1,440,000). The Commissioner also determined that, pursuant to
Section 212(1) and subject to the 2% floor provided by Section
67, Taxpayer was entitled to miscellaneous itemized deductions in
the amount of $175,513 for attorneys' fees attributable to the
interest portion of the settlement proceeds.
Taxpayer petitioned the Tax Court for a redetermination
of the deficiency, arguing that an amount received in settlement
of a personal injury claim represented damages under Rhode Island
law and that the entire lump sum received was therefore
excludable from income under Section 104(a)(2). The Tax Court
sustained the Commissioner's determination, holding that a
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portion of the settlement proceeds represented prejudgment
interest and was not excludable from income:
[I]n the instant case, no express
allocations were made in the [G]eneral
[R]elease as to interest. Indeed, the
[G]eneral [R]elease does not even mention
interest. Because there were no express
allocations, we must look to other
evidence in the record to decide whether
any of the settlement proceeds are to be
allocated to interest.
After setting forth the chronology of events culminating with the
Stipulation, the Tax Court concluded that "[b]ased on the facts
and circumstances of the instant case, we hold that [Taxpayer]
has failed to establish that none of the settlement proceeds were
paid on account of prejudgment statutory interest."
The Tax Court then proceeded to decide what portion of
the $2,000,000 constitutes interest. The court determined that,
"[b]ased on our calculations, we find that the interest portion
of a $2,000,000 judgment accruing interest at a rate of 12% per
annum over 9.5 years is $1,065,420.56" (footnote omitted).
Nevertheless, in light of the Commissioner's concession that
Taxpayer is not liable for a deficiency in excess of that set
forth in the notice of deficiency, the Tax Court sustained the
Commissioner's determination in the notice of deficiency that
$560,000 of the settlement represents interest.
This appeal ensued. We have jurisdiction pursuant to
26 U.S.C. 7482(a)(1).
STANDARD OF REVIEW
STANDARD OF REVIEW
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We review the Tax Court's decision "in the same manner
and to the same extent as decisions of the district courts in
civil actions tried without a jury." 26 U.S.C. 7482(a).
Whether prejudgment interest is taxable is purely a question of
law and, therefore, subject to de novo review. See Brabson v.
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United States, 73 F.3d 1040, 1042 (10th Cir. 1996) (Coffin, J.,
_____________
sitting by designation), petition for cert. filed, 64 U.S.L.W.
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3709 (Apr. 10, 1996); Alexander v. IRS, 72 F.3d 938, 941 (1st
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Cir. 1995) (collecting cases); see also First Nat'l Bank in
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Albuquerque v. Commissioner, 921 F.2d 1081, 1086 (10th Cir. 1990)
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(stating that de novo review is applied to tax court's findings
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of law and of ultimate fact derived from applying legal
principles to subsidiary facts). The Tax Court's findings of
fact -- including its allocation of the settlement proceeds to
various elements of recovery -- is reviewable only for clear
error. Alexander, 72 F.3d at 941.
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DISCUSSION
DISCUSSION
Neither party disputes that the claim underlying
Taxpayer's recovery was in the nature of a tort, or that Taxpayer
suffered injuries. What the parties vigorously dispute, and what
we must determine, is whether a portion of the lump sum received
in settlement of Taxpayer's personal injury claim constitutes
prejudgment interest and, if so, whether it is excludable as
"damages received . . . on account of personal injuries" within
the meaning of Section 104(a)(2).
I
I
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As always, we begin with the relevant Code provisions,
of which there are two. Section 61(a) provides that, "[e]xcept
as otherwise provided in this subtitle, gross income means all
income from whatever source derived." 26 U.S.C. 61(a); see 26
___
C.F.R. 1.104-1(c). As the "'sweeping scope' of this section
and its predecessors has been repeatedly emphasized by the
Supreme Court[,]" Brabson, 73 F.3d at 1042 (quoting Commissioner
_______ ____________
v. Schleier, ___ U.S. ___, 115 S. Ct. 2159, 2163 (1995)), "any
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gain constitutes gross income unless the taxpayer demonstrates
that it falls within a specific exemption." Id. In turn,
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Section 104(a)(2) -- the exclusion at issue here -- provides, in
relevant part, that gross income does not include "the amount of
any damages received (whether by suit or agreement and whether as
lump sums or as periodic payments) on account of personal
injuries or sickness." 26 U.S.C. 104(a)(2). As the Tenth
Circuit recently noted in Brabson, "[i]n interpreting the breadth
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of 104(a)(2), we are guided by the corollary to 61(a)'s broad
construction, the 'default rule of statutory interpretation that
exclusions from income must be narrowly construed.'" Id.
___
(quoting Schleier, ___ U.S. at ___, 115 S. Ct. at 2163); see also
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Delaney v. Commissioner, 99 F.3d 20 (1st Cir. 1996).
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II
II
Taxpayer makes two main contentions on appeal. First,
she claims that the settlement amount did not contain prejudgment
interest, but consisted solely of damages, excludable under
Section 104(a)(2). Second, she argues that prejudgment interest
-8-
is considered "damages" and, therefore, any amount attributable
to prejudgment interest is excludable under Section 104(a)(2).
We address Taxpayer's arguments in turn.
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A. Allocation of Settlement Amount
A. Allocation of Settlement Amount
"It is settled law that taxpayers bear the burden of
proving that a tax deficiency assessment is erroneous." Delaney,
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99 F.3d at 23. The Commissioner's "ruling has the support of a
presumption of correctness, and the [Taxpayer] has the burden of
proving it to be wrong." Welch v. Helvering, 290 U.S. 111, 115
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(1933). "Ultimately, of course, a tax deficiency assessment is
subject to reversal if the taxpayer establishes by a
preponderance of the evidence that it was erroneous." Delaney,
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99 F.3d at 23.
Taxpayer argues that the General Release's silence as
to interest is key to the proper determination of the allocation
of the settlement. While this argument may have a certain
appeal, see id. ("Since the settlement agreement language itself
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suggests no differentiation between damages and prejudgment
interest, its silence plainly permits the interpretation that the
entire $250,000 constituted recompense for personal injury."), it
ignores the guiding principle that "the required inquiry
encompasses much more than the mere language subscribed to by the
parties, whether in the settlement agreement proper, the
stipulation of dismissal, or both, because under established
precedent the Tax Court must determine 'in lieu of what were
damages awarded' or paid." Id. at 23-24. In making this
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determination, "the intent of the payor is a key determinant
whether a settlement recovery is excludable from gross income."
Id. at 24.
___
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Where, as here, that intent is not readily discernable,
the Tax Court looks to all facts and circumstances surrounding
the settlement, including "the details surrounding the litigation
in the underlying proceeding, the allegations contained in the
payee's complaint and amended complaint in the underlying
proceeding, and the arguments made in the underlying proceeding
by each party there." Robinson v. Commissioner, 102 T.C. 116
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(1994), rev'd in part on other grounds, 70 F.3d 34 (5th Cir.
_________________________________
1995), cert. denied, 117 S. Ct. 83 (1996). Furthermore, as we
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recently pointed out, and as Taxpayer recognizes, "a jury verdict
provides 'the best indication of the worth' of the taxpayers'
original tort claims." Delaney, 99 F.3d at 25 (quoting Robinson,
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70 F.3d at 38).
Here, the Tax Court, recognizing the General Release's
silence as to allocation of the settlement and having little, if
any, evidence before it indicating the payor's intent, looked
beyond the language of the General Release to the facts and
circumstances surrounding that settlement. The Tax Court
considered evidence from Taxpayer's attorneys that the tax
consequences of the settlement were not contemplated during the
settlement negotiations. The Tax Court also recognized, however,
that the settlement was negotiated under the shadow of a
judgment2 that provided prejudgment interest, in the same
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2 Taxpayer argues that the jury award was not a final verdict or
decision of the court under Rhode Island law. Taxpayer contends
that any debt was rendered unenforceable during the pendency of
the appeal and therefore there can be no finding of an interest
component based on the jury award. Even if Taxpayer correctly
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percentage of the total award both before and after the
remittitur.3 Regardless of which judgment is considered, the Tax
Court was not clearly erroneous in considering this circumstance
as part of the context in which the settlement was reached.
Additionally, the Stipulation, which stated that "[t]he
judgment . . . in the amount of $1,440,000, plus interest and
costs, has been fully satisfied," indicates that the settlement
reached reflected satisfaction of the jury award, as that award
had been apportioned by the Superior Court.
Moreover, while the available facts and circumstances
support the Tax Court's finding that the settlement amount
included prejudgment interest, nothing in those facts and
circumstances supports the opposite conclusion. At best, the
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recites the law of Rhode Island, which we need not decide, we are
not looking to the judgment as the sole indication of the
existence of an interest component in this settlement. Instead,
we regard the Superior Court's judgment as part of the context in
which the parties negotiated the settlement.
3 Taxpayer contends that Bohn's appeal reinstated the original
jury award. In support of this contention, Taxpayer cites Dawes
_____
v. McKenna, 215 A.2d 235 (R.I. 1965). Dawes, however, does not
_______ _____
hold that the original award is automatically reinstated; rather,
it allows only that the original award is open for review on
appeal. Id. at 325-26. Thus, it was not clearly erroneous for
___
the Tax Court to look to the award after remittitur as a
circumstance for consideration.
Furthermore, as the Tax Court appropriately recognized, even
if the original award were considered, there is no precedent for
the argument that a jury award larger than the settlement amount
necessitates a finding that the entire settlement is attributable
to compensation for personal injuries. In Robinson, 102 T.C.
________
116, the Tax Court found that a portion of the settlement
proceeds was attributable to interest even though the total
proceeds represented less than twenty percent of the original
damage award.
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General Release's silence regarding the allocation of the
settlement proceeds is ambiguous. In light of the other facts
and circumstances weighing in favor of the Tax Court's
conclusion, that ambiguity is certainly not enough to warrant a
finding that the Tax Court's findings are clearly erroneous.
Taxpayer contends that this case is similar to McShane
_______
v. Commissioner, T.C. Memo 1987-151. Although the facts in both
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cases involve a jury award, an appeal, and a settlement,
thereafter the two cases diverge. In McShane, the settlement
_______
agreement provided for lump sum payments to the taxpayers. In a
recent case similar to the one at bar, this court reviewed the
McShane decision and found that the Tax Court's determination
_______
that the settlement did not include interest was based on a
unique set of facts:
"First, the term 'without costs and
interest' had been included in the
settlement agreement at the insistence of
counsel for the principal defendant in
the tort action. Second, the intentions
of all parties to the underlying tort
action, as stated by their attorneys,
were most consistent with an intention to
pay no interest. Third, the Tax Court
credited the testimony of all counsel in
the tort action that the settlement
amounts for each plaintiff had been
arrived at by assessing the risks on
appeal and that the tax consequences had
never been discussed."
Delaney, 99 F.3d at 25.
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The Tax Court in the instant case made a similarly
thorough inquiry into the relevant facts and circumstances. It
found that the settlement agreement was negotiated in the context
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of the jury award in the underlying case. It also heard evidence
from the Taxpayer's attorneys that neither tax consequences nor
interest were considered in reaching the settlement amount. It
heard no evidence as to the intent of the payor, Bohn. The court
found that, unlike the agreement in McShane, there was no express
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statement in the Release indicating that the payment was not to
include prejudgment interest. Finally, the Stipulation contained
language indicating that the settlement satisfied the judgment
after remittitur, including interest and costs. We find that
these facts are sufficient to distinguish this case from McShane.
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Thus, the Tax Court's conclusion is amply supported by
the facts and circumstances surrounding the settlement and
Taxpayer's arguments are insufficient to overcome her burden of
showing error in the Commissioner's determination or clear error
in the Tax Court's findings.
B. Whether prejudgment interest is excludable as
B. Whether prejudgment interest is excludable as
"damages" under Rhode Island law.
"damages" under Rhode Island law.
1. Kovacs v. Commissioner
1. Kovacs v. Commissioner
______ ____________
Taxpayer argues that the Code, legislative history and
prior case law do not support the Tax Court's holding in Kovacs
______
v. Commissioner, 100 T.C. 124 (1993), aff'd, 25 F.3d 1048
____________ _____
(6th Cir.), cert. denied, 115 S. Ct. 424 (1994), that prejudgment
____________
interest on a personal injury claim is not excludable from income
under Section 104(a)(2). Her contention is that the Tax Court in
Kovacs improperly relied on precedent holding that post-judgment
______ ____
interest is not excludable from interest income. She further
maintains that nothing in the legislative history of Section
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104(a)(2) supports a distinction between compensatory damages and
interest awarded on a claim of physical injury. Finally, relying
on the Periodic Payment Settlement Act of 1982,4 Taxpayer argues
that Congress, in amending the Code to allow for the exclusion of
period settlement payments -- which would include a component
representing the time value of money, or interest -- disregarded
any difference between lump sum and periodic payments and meant
for any interest income upon settlement to be excludable. As we
find nothing in the record below, including the testimony
presented and the initial and reply briefs of the parties, to
indicate that these arguments were raised before the Tax Court,
we decline Taxpayer's invitation to consider them for the first
time on appeal. See Delaney, 99 F.3d at 26 (determining that
___ _______
taxpayer's failure to raise a similar argument before the Tax
Court amounted to waiver of that argument).
2. Treatment of Interest Under Rhode Island Law
2. Treatment of Interest Under Rhode Island Law
Taxpayer contends that whether an award is taxable is
determined by reference to the nature of the underlying claim.
She points out that the underlying claim here is one to redress
personal injury and, as such, the damages received thereon are
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4 We note, in passing, that, to the extent Taxpayer's arguments
rely on this amendment, such reliance is misplaced. That Act
allows the excludability of the entire amount of periodic
payments in settlement of a claim. In so doing, the Act allows a
portion of "interest" to be excluded from gross income. This
Act, however, does not assist Taxpayer, as her settlement does
not fall within the provisions of that Act. We apply the
statutory language relevant to Taxpayer's particular claim. As
the Tax Court did in Kovacs v. Commissioner, 100 T.C. 124, 132-
______ ____________
33, any inconsistency between the two methods of settlement we
leave to Congress to remedy.
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excludable. Noting that the nature of the underlying claim is
determined under the relevant state law, Taxpayer argues that,
under Rhode Island law, statutorily imposed interest is
considered part of damages meant to compensate the injured party
and thus is excludable.
We recently visited the question of state law
characterization of interest. In Delaney, we looked to the
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"thoughtful" approach utilized in Brabson, 73 F.3d 1040 (10th
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Cir. 1996) (Coffin, J., sitting by designation):
"The Tenth Circuit . . . noted that
though state law governs the nature of
legal interests and rights created under
state law, the 'federal tax consequences
pertaining to such interests and rights
are solely a matter of federal law.' . .
. Accordingly, the Brabson panel first
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ascertained the pertinent characteristics
of statutory prejudgment interest under
[the relevant state] law, but then looked
to federal law to determine its
excludability."
Delaney, 99 F.3d at 26.
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Accordingly, we look first to Rhode Island law to
determine the legal nature of prejudgment interest. Taxpayer
relies on Factory Mutual Insurance Company of America v. Cooper,
___________________________________________ ______
262 A.2d 370 (R.I. 1970), for the proposition that interest is
part of damages. Taxpayer's reliance is misplaced. The Factory
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Mutual court did not hold that prejudgment interest is a
______
component of damages under Rhode Island law. Instead, the court
there was determining the meaning of the word "damages" as it was
used in an insurance policy. See id. at 373.
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"[S]tatutory prejudgment interest is not an element of
damages in a personal injury action under Rhode Island law."
Delaney, 99 F.3d at 26 (citing DiMeo v. Philbin, 502 A.2d 825,
_______ _____ _______
826 (R.I. 1986) (determining that prejudgment interest in
personal injury action is purely statutory and therefore not an
element of damages)).
Having found that, under Rhode Island law, prejudgment
interest is not considered damages, we next look to federal law
to determine the nature of prejudgment interest for federal tax
purposes. See id.
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3. Prejudgment Interest Under Federal Law.
3. Prejudgment Interest Under Federal Law.
The Supreme Court recently explained the two
requirements for exclusion under Section 104(a)(2):
"First, the taxpayer must demonstrate
that the underlying cause of action
giving rise to the recovery is 'based
upon tort or tort type rights'; and
second, the taxpayer must show that the
damages were received 'on account of
personal injuries or sickness.'"
Commissioner v. Schleier, ___ U.S. ___, 115 S. Ct. 2159, 2167
____________ ________
(1995). The cause of action underlying Taxpayer's settlement was
assuredly one based upon tort or tort type rights. We look,
then, to determine whether Taxpayer has met the second prong of
excludability.
Taxpayer appears to argue that the purpose of the
statutorily-imposed prejudgment interest is to make her whole, as
though the injury had never occurred. This argument rests on two
statements we glean from her brief to the effect that the
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interest imposed is meant to compensate the injured party for a
delay in the payment. Though this argument may have some merit,
we reserve the question for another day. Because Taxpayer failed
to raise the contention that the statutorily-imposed prejudgment
interest is somehow related to her personal injury before the Tax
Court, she has not preserved the argument for appeal. We find
that argument waived. See Mulero-Rodr guez v. Ponte, Inc., 98
___ ________________ ___________
F.3d 670, 679 (1st Cir. 1996) (noting that appellants' silence as
to a particular legal argument before the trial court amounted to
waiver of that issue on appeal); see also National Ass'n of
_________ __________________
Social Workers v. Harwood, 69 F.3d 622, 627-28 (1st Cir. 1995)
_______________ _______
(setting forth the strenuous guidelines for finding an exception
to this waiver rule).
In addition, we note that Taxpayer's failure to
adequately present any "make whole" argument in her brief on
appeal also supports a finding that this issue has been waived.
We have previously recognized that "a litigant has an obligation
'to spell out its arguments squarely and distinctly' . . . or
else forever hold its peace." See Rivera-G mez v. Castro, 843
___ ____________ ______
F.2d 631, 634-35 (quoting Paterson-Leitch Co. v. Massachusetts
___________________ _____________
Municipal Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.
_______________________________
1988)). Here, Taxpayer has failed to put forth a coherent
argument, beyond vague reference, regarding any relationship an
award of statutorily-imposed interest might have to her personal
injuries. "It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
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counsel's work, create the ossature for the argument, and put
flesh on its bones." United States v. Zannino, 895 F.2d 1, 17
______________ _______
(1st Cir.), cert. denied, 494 U.S. 1082 (1990); see also In re
____________ ________ _____
Three Additional Appeals Arising Out of the San Juan Dupont Plaza
_________________________________________________________________
Hotel Fire Litigation, 93 F.3d 1, 2 n.2 (1st Cir. 1996) (noting
_____________________
that "it is beyond peradventure that we will not address an issue
when the party raising it fails to treat it seriously"). We will
not "abandon the settled appellate rule that issues adverted to
in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." Zannino, 895 F.2d
_______
at 17. Because we refuse to guess at Taxpayer's argument, any
"make-whole" argument she might have made is waived.
We decline to pass on this question where the court
below was not presented with either a legal argument or a factual
predicate on which to make a reasoned analysis of any
compensatory component of prejudgment interest and where we do
not have the benefit of a properly briefed argument.
CONCLUSION
CONCLUSION
For the foregoing reasons, the decision below is
affirmed.
affirmed
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