United States v. Cromar

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 26, 2020
• Docket: 19-4075
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 26, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-4075 (D.C. No. 2:17-CV-01223-RJS) PAUL KENNETH CROMAR; BARBARA (D. Utah) ANN CROMAR,

Defendants - Appellants,

and

UTAH HOUSING FINANCE AGENCY; UNIVERSAL CAMPUS FEDERAL CREDIT UNION; STATE OF UTAH TAX COMMISSION; UTAH COUNTY,

Defendants. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, PHILLIPS, and CARSON, Circuit Judges. _________________________________

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Paul and Barbara Cromar, proceeding pro se, 1 appeal from the district court’s

orders granting default judgment to the United States on Mr. Cromar’s federal

income tax liabilities and foreclosing federal tax liens through a sale of his real

property. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

Mr. Cromar did not file federal income tax returns for the 1999 through 2005

tax years and did not comply with requests for documentation by the Internal

Revenue Service (IRS). The United States filed an action against Mr. Cromar in

2017, seeking to reduce to judgment assessments against him for unpaid income

taxes and to foreclose tax liens through a sale of his real property in Cedar Hills,

Utah. The complaint also named as defendants those with a potential interest in the

property, including Mrs. Cromar, governmental entities, and a lending institution.

The Cromars refused to answer the complaint and, instead, challenged the

district court’s subject-matter jurisdiction and the government’s constitutional taxing

authority. After denying several such motions and objections, the court directed

them to answer the complaint and warned of possible sanctions if they continued

filing frivolous motions. Undeterred, the Cromars continued raising the same

jurisdictional arguments and refused to answer the complaint, even though the court

gave them multiple extensions of time. After rejecting the Cromars’ motions and

objections, the district court granted the government’s motion for entry of default

1 “[W]e liberally construe” the Cromars’ pro se briefs, “but we will not act as [their] advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 2 judgment. The Cromars moved to vacate the judgment based on the same

jurisdictional arguments. The district court denied the motion and entered an order

restricting their ability to file further documents without seeking and obtaining leave.

In its February 2019 order granting the government’s motion for default

judgment, the district court decreed: (1) Mr. Cromar owed more than $1 million in

tax liabilities; (2) his tax liabilities generated statutory liens on his property; and

(3) Mrs. Cromar, by virtue of her default, lacked an interest in the property. 2 After

the Cromars filed an interlocutory appeal, which we dismissed for lack of

jurisdiction, the district court entered an Order of Foreclosure and Judicial Sale,

decreeing that the tax liens be foreclosed and that Mr. Cromar’s property be sold free

and clear of any liens or other interests. The order also set procedures for the sale

and distribution of the proceeds and ordered the Cromars to vacate the property or be

evicted. This appeal followed. 3

DISCUSSION

The Cromars contend: (1) the district court erred in granting default judgment

to the United States because it lacked subject-matter jurisdiction and because the

2 The court also entered default judgment against a lending institution that failed to answer the complaint. The other named defendants either disclaimed an interest in the property or entered into a stipulation with the government. 3 While this appeal was pending, the Cromars filed several motions to stay the district court proceedings, including: (1) to prevent the foreclosure and sale; (2) to have their occupancy of the property restored; and (3) to prevent the district court from confirming the sale and distributing the proceeds. We denied the first two motions by separate orders, and we now deny the third motion, as noted below. 3 government lacks the authority to impose and collect federal income taxes; (2) the

district court denied the Cromars due process by not conducting a hearing prior to

ordering the sale of Mr. Cromar’s property; and (3) the district court lacked

subject-matter jurisdiction to order the Cromars evicted from the property.

Reviewing these questions of law de novo, see Chevron Mining Inc. v. United States,

863 F.3d 1261, 1269 (10th Cir. 2017), we conclude the Cromars’ contentions are

frivolous.

First, the district court properly noted it had subject-matter jurisdiction under

28 U.S.C. § 1340 (giving district courts jurisdiction over “any civil action arising

under any Act of Congress providing for internal revenue”), 28 U.S.C. § 1345 (giving

district courts jurisdiction over “all civil actions . . . commenced by the United

States”), 26 U.S.C. § 7402 (giving district courts jurisdiction to render judgments

“for the enforcement of the internal revenue laws” and cross-referencing 28 U.S.C.

§ 1340), and 26 U.S.C. § 7403 (giving district courts jurisdiction over an action to

enforce a tax lien). The Cromars contend these statutes are “vague and

non-specific,” Aplt. Opening Br. at 8, and apply only to “the enforcement of the

indirect Excise taxation of commodities and articles of commerce,” Aplt. Reply Br. at

8 (emphasis omitted). But they offer no coherent analysis, let alone authority, to

support such contentions. “The court will not consider such issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed argumentation.”

United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (internal quotation

marks omitted).

4 Next, in contesting the government’s authority over income tax laws, the

Cromars argue the district court should have required the government to identify “the

specific constitutional power to tax that is being exercised and pursued by the

plaintiff for enforcement by the court.” Aplt. Opening Br. at 5 (emphasis omitted).

Specifically, they contend the government needed to identify whether the income tax

was direct, and thus invalid without apportionment among the states, see U.S. Const.

art. I, §§ 2, 9, or indirect, and not subject to apportionment, see id. § 8.

As the government correctly notes, we have recognized “the Sixteenth

Amendment to the Constitution authorized a non-apportioned direct income tax on

United States citizens and that the federal tax laws as applied are valid.” Aplee. Br.

at 14 (citing United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990)). 4 See

generally U.S. Const. amend. XVI (“The Congress shall have power to lay and

collect taxes on incomes, from whatever source derived, without apportionment

among the several States, and without regard to any census or enumeration.”). We

also have found to be frivolous arguments similar to the Cromars’ contentions—that

“the income tax is a direct tax which is invalid absent apportionment” or that “the

Sixteenth Amendment to the Constitution is . . . invalid.” Lonsdale v. United States,

919 F.2d 1440, 1448 (10th Cir. 1990).

4 The Cromars insist Collins was “erroneously” decided. Aplt. Reply Br. at 7. But that is not for us to consider. See United States v. Gaines, 918 F.3d 793, 796 n.3 (10th Cir. 2019) (noting one panel cannot “overrule another”). 5 Ultimately, “[i]t is unnecessary to delve into the difficult question of the

distinction between direct and indirect taxes because,” either under the Sixteenth

Amendment or Supreme Court cases pre-dating the amendment, “Congress has the

power to tax the income of individuals.” United States v. Stillhammer, 706 F.2d

1072, 1077 (10th Cir. 1983); see also Charczuk v. Comm’r, 771 F.2d 471, 473

(10th Cir. 1985) (holding “there is no question but that Congress has the

constitutional authority to impose an income tax”). We reiterate: “The Internal

Revenue Code was validly enacted by Congress and is fully enforceable.” United

States v. Dawes, 874 F.2d 746, 750 (10th Cir. 1989), overruled in part on other

grounds by United States v. Allen, 895 F.2d 1577 (10th Cir. 1990). Accordingly, the

Cromars’ strained argument regarding direct and indirect taxation is without merit.

Next, the Cromars contend their due process rights were violated when the

district court did not conduct an additional hearing prior to ordering the sale of

Mr. Cromar’s real property. Specifically, they argue the court failed to conduct a

pre-sale hearing required by 28 U.S.C. § 2001(b). Section 2001 establishes

procedures for the judicial sale of realty, but subsection (b) applies only to private

sales. See 28 U.S.C. § 2001(b) (requiring a hearing prior to the court “order[ing] the

sale of such realty or interest or any part thereof at private sale” and imposing

conditions that must be satisfied “[b]efore confirmation of any private sale”

(emphasis added)). The district court ordered Mr. Cromar’s property auctioned at a

public sale. See 28 U.S.C. § 2001(a) (providing “[a]ny realty or interest therein sold

under any order or decree of any court of the United States shall [generally] be

6 sold . . . at public sale” (emphasis added)); see also id. § 2002 (providing notice

requirements for “[a] public sale of realty or interest therein under any order,

judgment or decree of any court of the United States”). The Cromars’ reliance on

28 U.S.C. § 2001(b) is misplaced.

Similarly, the Cromars contend they were not given notice under

28 U.S.C. § 3202(b) of the right to a pre-sale hearing under § 3202(d). But those

provisions of the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C.

§§ 3001-3308, do not apply to a proceeding to collect income taxes brought under

26 U.S.C. §§ 7402 and 7403, see 28 U.S.C. § 3001(b) (“To the extent that another

Federal law specifies procedures for recovering on a claim or a judgment for a debt

arising under such law, those procedures shall apply to such claim or judgment to the

extent those procedures are inconsistent with this chapter.”); id. § 3003(b)(1) (noting

the FDCPA does not limit the government’s right “to collect taxes”). The Cromars’

claim that they were denied due process when the court failed to conduct a pre-sale

hearing lacks merit. 5

Finally, the Cromars contend the district court lacked jurisdiction to evict

them. They argue, without authority, that “[e]victions from property located within a

State of the United States of America are of course a matter of state law, not federal,

5 The Cromars also allege “they have never been allowed . . . a single appearance or hearing in the entire civil action.” Aplt. Reply Br. at 26 (emphasis omitted). But that plainly is incorrect. See R. Vol. I at 163-72 (transcript of initial pretrial conference, reflecting the Cromars appeared by telephone and repeated the arguments they made in their previously denied motion to dismiss). 7 unless the property is already owned or legally controlled by the United States.”

Aplt. Opening Br. at 25 (emphasis omitted). But in ordering the sale of property

encumbered by a tax lien, see 26 U.S.C. § 7403(c), the district court had the authority

to condition the sale “upon such terms and conditions as the court directs,” 28 U.S.C.

§ 2001(a), and “to render such judgments and decrees as may be necessary or

appropriate for the enforcement of the internal revenue laws,” 26 U.S.C. § 7402(a).

The district court, therefore, had jurisdiction to require the Cromars to vacate the

property and to order their removal if they refused to comply.

CONCLUSION

The district court’s orders are affirmed. The Cromars’ “Motion for Leave to

File Motion to Take Judicial Notice of Law” is denied. 6 Their “Motion for Leave of

the Court to Exceed Briefing Page Limitation” is granted, and their corresponding

“Motion to Enjoin Further Process in the District Court Pending Resolution of

Appeals and the Subject-Matter Jurisdiction Question” is denied as moot.

Entered for the Court

Joel M Carson III Circuit Judge

6 In their motion for judicial notice, the Cromars request we take notice of Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916). But the Cromars already cited Brushaber in their briefs. And to the extent this sixteen-page motion raises arguments ostensibly based on Brushaber, it is an impermissible attempt to evade the length-limitations on their reply brief. 8