United States v. Curtis Gordon, Jr.

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 18, 2022
• Docket: 21-6121
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0337n.06

No. 21-6121 FILED UNITED STATES COURT OF APPEALS Aug 18, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF CURTIS GORDON, JR., ) KENTUCKY Defendant-Appellant. ) ) OPINION

Before: SUTTON, Chief Judge; KETHLEDGE and READLER, Circuit Judges

KETHLEDGE, Circuit Judge. In this case, Curtis Gordon, Jr. seeks to relitigate tax

liabilities that he and the IRS litigated to a final decision in the Tax Court in 2016. Gordon is

barred from relitigating those issues now, which means the district court properly entered judgment

in favor of the government here. We affirm the district court’s judgment.

I.

A.

In the early 2000s, Gordon was a police officer in Louisville, Kentucky. On the side,

Gordon owned some security companies, as to which he failed to report more than $100,000 in

income on his returns for the 2003-05 tax years. In 2010, a jury convicted Gordon of filing false

tax returns for those years, among other offenses. The district court sentenced Gordon to 39

months in prison. No. 21-6121, United States v. Gordon

In December 2013, the IRS sent Gordon a “notice of deficiency” in which it stated that—

for the 2003, 2004, and 2005 tax years—Gordon owed civil-fraud penalties under 26 U.S.C.

§ 6663(a) in the amounts of $16,114, $22,580, and $38,491, respectively. (Those amounts equaled

75% of the amounts Gordon had fraudulently failed to report each year. See id. The IRS also

stated that Gordon owed another $50 in taxes for 2003.) Two months later, Gordon filed a petition

in the Tax Court, seeking a redetermination of his penalties for tax years 2003-05. In early

November 2015—21 months after Gordon filed the petition—the Tax Court adjourned the case’s

trial date, based on the parties’ representation that they were close to settlement. Days later, the

parties filed with the Tax Court a “Stipulation of Settled Issues,” which reflected the parties’

“agreement” as to all “adjustments” the parties thought necessary to “the statutory notice of

deficiency” that the IRS had sent Gordon. All those “adjustments” favored Gordon, who for his

part agreed that he was “subject to the I.R.C. § 6663 penalty” for all three tax years. The IRS then

recomputed Gordon’s penalties for 2003-05, which were about $19,000 lower as a result of the

stipulated adjustments.

Over the next month, Gordon failed to respond to several attempts by the IRS’s counsel to

obtain his agreement as to the recomputed penalty amounts. In January 2016, the IRS moved for

the Tax Court to enter a decision in the IRS’s favor as to the amount of Gordon’s penalties as

recomputed in light of the adjustments in the parties’ stipulation. The Tax Court directed Gordon

to respond to the IRS’s motion within 30 days, but again Gordon did not respond. In April 2016,

the Tax Court entered an Order and Decision in which it found that “there are penalties due from

petitioner for the taxable years 2003, 2004, and 2005, under the provisions of I.R.C. § 6663, in the

amounts of $16,114.50, $21,708.00, and $20,250.75, respectively.”

2 No. 21-6121, United States v. Gordon

B.

Those are the amounts that Gordon now seeks to relitigate here. In November 2018, the

government brought this suit in the district court, seeking to reduce to judgment Gordon’s total

liability for tax years 2003-05, based upon the Tax Court’s determination of Gordon’s penalties

for those years. See generally 26 U.S.C. § 7403. According to the government, that total

liability—as a result of accrued interest—amounted to $329,712 as of the filing of the

government’s amended complaint. In Gordon’s answer, he disputed the amount and validity of

the penalties that the Tax Court had determined that he owed for tax years 2003-05. The

government eventually moved for summary judgment, arguing that Gordon was precluded from

relitigating matters decided in the Tax Court’s Order and Decision. The district court agreed and

entered judgment in favor of the government in the amount of $324,057, plus interest “that will

continue to accrue[.]” This appeal followed.

II.

We review de novo the district court’s grant of summary judgment. Maben v. Thelen, 887

F.3d 252, 258 (6th Cir. 2018).

Although the parties argue in terms of claim preclusion, we decide this appeal on the

ground of issue preclusion. That doctrine “precludes a party from relitigating an issue actually

decided in a prior case and necessary to the judgment.” Lucky Brand Dungarees, Inc. v. Marcel

Fashions Grp., Inc., 140 S. Ct. 1589, 1594 (2020). The doctrine’s requirements are plainly met

here: Gordon himself petitioned the Tax Court to determine the amounts of his penalties for tax

years 2003-05; the Tax Court actually determined those amounts, pursuant to the terms of a

stipulation that Gordon himself signed; and Gordon had ample opportunity to contest those

amounts before the Tax Court entered its Order and Decision. Gordon is therefore barred from

3 No. 21-6121, United States v. Gordon

challenging those amounts now. See Amos v. PPG Indus., Inc., 699 F.3d 448, 451 (6th Cir. 2012);

Golden v. Comm’r, 548 F.3d 487, 495 (6th Cir. 2008). And Gordon has not disputed the

government’s computation of his total liability based on the amounts specified in the Tax Court’s

decision. That means his appeal is meritless.

Gordon does complain that the government waited until its motion for summary judgment

to argue that he was barred from relitigating the Tax Court’s decision. But Gordon (who in this

suit has retained counsel) can hardly have been surprised that the government would argue he was

bound by a recent decision entered pursuant to his own stipulation. Nor do we see any prejudice

resulting from the government’s failure to raise the issue sooner. Gordon had a full opportunity to

respond to the government’s motion for summary judgment; and he has not identified any

discovery that would have been relevant to the preclusive effect of the Tax Court’s decision. The

district court was within its rights to consider the government’s preclusion argument. See Rogers

v. Internal Revenue Serv., 822 F.3d 854, 857 (6th Cir. 2016).

The district court’s judgment is affirmed.