Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 2, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-3054 (D.C. No. 2:24-CV-02144-JAR- ALLEN R. DAVISON, RES) (D. Kan.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
The Internal Revenue Service imposed tax penalties against the
defendant, Mr. Allen Davison, sparking two rounds of litigation. The first
round took place before the Tax Court, which rejected Mr. Davison’s
challenge to the tax penalties; the second round of litigation took place in
district court, where the government sought to reduce the penalties to a
judgment. The district court granted summary judgment to the government,
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 2
relying on issue preclusion based on the Tax Court’s rejection of the same
arguments. Mr. Davison appeals the grant of summary judgment.
But in issuing the subsequent judgment, the court didn’t state the
amount of the penalty or who owes it. While the appeal was pending,
however, the district court tried to add the missing information. The
government asks us to recognize the amended judgment even though it was
issued after Mr. Davison had appealed.
The sequence of events triggers three procedural issues:
1. Recognition of the amended judgment: The threshold issue is whether we can recognize the amended judgment, which set the amount and identified the party owing the penalties, even though Mr. Davison had appealed the original judgment. Ordinarily a district court can amend a judgment by stating the amount and who owes it. But Mr. Davison had already appealed before the district court added this information. Because the matter had already been appealed, the district court could amend the judgment only with leave of court; and we hadn’t granted such leave. So the amended judgment is a nullity.
2. Appealability of the original judgment: The incomplete nature of the original judgment triggers a question involving our jurisdiction. For appellate jurisdiction, we ordinarily need a final decision; and Mr. Davison had appealed before the district court said how much is owed or who owes it. Because the omitted information was ministerial, however, the original judgment is considered final for purposes of appellate jurisdiction.
3. Issue preclusion: The existence of appellate jurisdiction triggers a procedural issue involving Mr. Davison’s argument before the district court that the IRS miscalculated the penalties by basing the amount on his legal fees. But he had made the same argument in Tax Court, and that court rejected his argument. So the district court concluded that Mr. Davison’s argument was subject to issue preclusion. He
2 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 3
doesn’t address this reasoning in his opening brief; and even in his reply brief, he questions the constitutionality of the assessment rather than the applicability of issue preclusion. We therefore affirm the grant of summary judgment.
1. The Tax Court upholds the assessment.
Mr. Davison is an attorney who advised a client, Cash Management
Systems, about a marketing program to reduce taxes. The IRS deemed the
program an abusive tax shelter and assessed penalties totaling $36,000 for
his role as a promoter.
Mr. Davison went to Tax Court, arguing that the IRS had
miscalculated the penalties by basing them on his legal fees. The Tax
Court rejected this argument, concluding that Mr. Davison had earned the
fees by promoting an abusive tax shelter rather than providing legal
advice. Davison v. Comm’r, T.C. Memo 2020-58 at 50–52, 61, 67 (T.C.
2020). 1
2. The district court grants summary judgment to the government.
The government filed a new action in federal district court to reduce
the penalties to judgment. Mr. Davison objected, arguing again that he had
earned the fees by giving legal advice rather than promoting the program.
The district court granted summary judgment to the government, but didn’t
say in the judgment how much the penalties were or who owes them.
1 Mr. Davison appealed, but we dismissed the appeal for lack of appellate jurisdiction. Davison v. Comm’r, No. 20-9002, 2022 WL 2196884, at *1 (10th Cir. June 17, 2022). 3 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 4
3. Mr. Davison appeals, and the district court amends the judgment.
Mr. Davison unsuccessfully sought reconsideration and appealed.
While the appeal was pending, however, the government asked us to allow
the district court to amend the judgment by stating the amount and
identifying who owes it. We denied the request, but said that the
government could renew the request if the district court indicated that it
would allow amendment of the judgment.
The government then returned to district court. Rather than ask the
district court to say how it would rule, however, the government asked the
court to go ahead and amend the judgment. The district court granted the
request and amended the judgment, stating the amount and who owes it.
4. The amended judgment is a nullity.
That amendment was unauthorized. Because Mr. Davison had already
appealed, the district court needed leave of this court to amend the
judgment. Fed. R. Civ. P. 60(a); Fed. R. Civ. P. 62.1(a)(3). Rather than
grant leave, however, we said that the government could renew the request
only if the district court indicated that it would allow amendment of the
judgment. But the district court couldn’t amend the judgment absent a
remand for that purpose. Fed. R. Civ. P. 62.1(c).
The government asks us to skip the procedural steps for amendment
of the judgment. But we can’t pretend that the district court had jurisdiction
when it didn’t. Once Mr. Davison appealed, the district court lost
4 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 5
jurisdiction over those parts of the case involved in the appeal. United
States v. Madrid, 633 F.3d 1222, 1226 (10th Cir. 2011). And the district
court’s judgment was precisely what Mr. Davison was appealing. So the
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Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 2, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-3054 (D.C. No. 2:24-CV-02144-JAR- ALLEN R. DAVISON, RES) (D. Kan.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
The Internal Revenue Service imposed tax penalties against the
defendant, Mr. Allen Davison, sparking two rounds of litigation. The first
round took place before the Tax Court, which rejected Mr. Davison’s
challenge to the tax penalties; the second round of litigation took place in
district court, where the government sought to reduce the penalties to a
judgment. The district court granted summary judgment to the government,
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 2
relying on issue preclusion based on the Tax Court’s rejection of the same
arguments. Mr. Davison appeals the grant of summary judgment.
But in issuing the subsequent judgment, the court didn’t state the
amount of the penalty or who owes it. While the appeal was pending,
however, the district court tried to add the missing information. The
government asks us to recognize the amended judgment even though it was
issued after Mr. Davison had appealed.
The sequence of events triggers three procedural issues:
1. Recognition of the amended judgment: The threshold issue is whether we can recognize the amended judgment, which set the amount and identified the party owing the penalties, even though Mr. Davison had appealed the original judgment. Ordinarily a district court can amend a judgment by stating the amount and who owes it. But Mr. Davison had already appealed before the district court added this information. Because the matter had already been appealed, the district court could amend the judgment only with leave of court; and we hadn’t granted such leave. So the amended judgment is a nullity.
2. Appealability of the original judgment: The incomplete nature of the original judgment triggers a question involving our jurisdiction. For appellate jurisdiction, we ordinarily need a final decision; and Mr. Davison had appealed before the district court said how much is owed or who owes it. Because the omitted information was ministerial, however, the original judgment is considered final for purposes of appellate jurisdiction.
3. Issue preclusion: The existence of appellate jurisdiction triggers a procedural issue involving Mr. Davison’s argument before the district court that the IRS miscalculated the penalties by basing the amount on his legal fees. But he had made the same argument in Tax Court, and that court rejected his argument. So the district court concluded that Mr. Davison’s argument was subject to issue preclusion. He
2 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 3
doesn’t address this reasoning in his opening brief; and even in his reply brief, he questions the constitutionality of the assessment rather than the applicability of issue preclusion. We therefore affirm the grant of summary judgment.
1. The Tax Court upholds the assessment.
Mr. Davison is an attorney who advised a client, Cash Management
Systems, about a marketing program to reduce taxes. The IRS deemed the
program an abusive tax shelter and assessed penalties totaling $36,000 for
his role as a promoter.
Mr. Davison went to Tax Court, arguing that the IRS had
miscalculated the penalties by basing them on his legal fees. The Tax
Court rejected this argument, concluding that Mr. Davison had earned the
fees by promoting an abusive tax shelter rather than providing legal
advice. Davison v. Comm’r, T.C. Memo 2020-58 at 50–52, 61, 67 (T.C.
2020). 1
2. The district court grants summary judgment to the government.
The government filed a new action in federal district court to reduce
the penalties to judgment. Mr. Davison objected, arguing again that he had
earned the fees by giving legal advice rather than promoting the program.
The district court granted summary judgment to the government, but didn’t
say in the judgment how much the penalties were or who owes them.
1 Mr. Davison appealed, but we dismissed the appeal for lack of appellate jurisdiction. Davison v. Comm’r, No. 20-9002, 2022 WL 2196884, at *1 (10th Cir. June 17, 2022). 3 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 4
3. Mr. Davison appeals, and the district court amends the judgment.
Mr. Davison unsuccessfully sought reconsideration and appealed.
While the appeal was pending, however, the government asked us to allow
the district court to amend the judgment by stating the amount and
identifying who owes it. We denied the request, but said that the
government could renew the request if the district court indicated that it
would allow amendment of the judgment.
The government then returned to district court. Rather than ask the
district court to say how it would rule, however, the government asked the
court to go ahead and amend the judgment. The district court granted the
request and amended the judgment, stating the amount and who owes it.
4. The amended judgment is a nullity.
That amendment was unauthorized. Because Mr. Davison had already
appealed, the district court needed leave of this court to amend the
judgment. Fed. R. Civ. P. 60(a); Fed. R. Civ. P. 62.1(a)(3). Rather than
grant leave, however, we said that the government could renew the request
only if the district court indicated that it would allow amendment of the
judgment. But the district court couldn’t amend the judgment absent a
remand for that purpose. Fed. R. Civ. P. 62.1(c).
The government asks us to skip the procedural steps for amendment
of the judgment. But we can’t pretend that the district court had jurisdiction
when it didn’t. Once Mr. Davison appealed, the district court lost
4 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 5
jurisdiction over those parts of the case involved in the appeal. United
States v. Madrid, 633 F.3d 1222, 1226 (10th Cir. 2011). And the district
court’s judgment was precisely what Mr. Davison was appealing. So the
district court’s subsequent amendment of that judgment was a nullity.
Garcia v. Burlington N. R.R., 818 F.2d 713, 721 (10th Cir. 1987).
Because the amended judgment was a nullity, we must disregard it.
So we deny the government’s request for us to recognize the amended
judgment.
5. We nonetheless have jurisdiction to decide Mr. Davison’s appeal.
The nullity of the amendment triggers a question about our own
jurisdiction. We typically have jurisdiction only when the district court
enters a final decision. 28 U.S.C. § 1291. And a decision is ordinarily final
only when the district court has done everything required for a party to
execute the judgment. Albright v. UNUM Life Ins. Co. of Am., 59 F.3d
1089, 1092 (10th Cir. 1995). But the original judgment couldn’t be
executed because it didn’t quantify the penalties or say who owes them.
Nonetheless, these omissions trigger an exception, which deems
decisions final when the omitted information is ministerial. Id. at 1093.
The omissions here were ministerial: The original judgment didn’t identify
the payor or quantify the amount. But the payor was obvious: Mr. Davison.
And the amount was fixed: The penalties totaled $36,000 plus interest. The
only remaining task involved a computation of interest. For that
5 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 6
computation, the IRS submitted an affidavit stating that the penalties and
interest totaled $51,589.34; and Mr. Davison hasn’t questioned that
computation or denied that he is the person owing the penalties. So the
omissions were ministerial, and we have jurisdiction over the appeal.
6. Mr. Davison hasn’t challenged the district court’s reasoning.
The district court applied issue preclusion, and Mr. Davison needed
to tell us why he thought that the court was wrong. Nixon v. City & Cnty.
of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015); Fed. R. App. P. 28(a)(8).
But Mr. Davison hasn’t done that.
He argues that the IRS miscalculated the penalties by treating his
legal fees as payment to promote a scheme to improperly avoid taxes. But
the district court ruled that Mr. Davison couldn’t reassert this argument
because it had already been rejected in the Tax Court. Mr. Davison says
nothing in his opening brief about this reasoning. And in his reply brief, he
says only that the miscalculation of penalties violated his constitutional
rights. Even if he’s right, however, Mr. Davison lost that argument in Tax
Court. So the possibility of a constitutional violation wouldn’t cast doubt
on the district court’s reliance on issue preclusion.
6 Appellate Case: 25-3054 Document: 33-1 Date Filed: 06/02/2026 Page: 7
***
We deny the government’s request to recognize the amended
judgment (Dkt. No. 17), vacate the amended judgment, and affirm the
original judgment upholding the IRS’s assessment of tax penalties. 2
Entered for the Court
Robert E. Bacharach Circuit Judge
2 After the mandate is issued, the government may renew its motion in district court to amend the judgment by correcting the clerical error. See Hartis v. Chi. Title Ins. Co., 694 F.3d 935, 950 (8th Cir. 2012) (stating that after the appeal has been resolved, the district court regains authority under Federal Rule of Civil Procedure 60(a) to fill in omissions in the judgment, without leave of the appellate court, if the corrections don’t alter anything decided in the appeal); Semtner v. Grp. Health Serv. of Okla., Inc., 129 F.3d 1390, 1392 (10th Cir. 1997) (explaining that when the district court entered judgment on liability without specifying the amount of damages, the omission was “a clerical error correctable under [Rule] 60(a)” because the amount was “readily ascertainable and undisputed”). 7