Judge Somers

06-11237 Dawes (Doc. # 339)

Signed and entered on 07/30/2008

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SIGNED this 30 day of July, 2008.

Dale L. Somers


In re:
DONALD W. DAWES and CASE NO. 06-11237


The matter under advisement is the United States’ Response to Debtors’ Objection to IRS
Claim and Motion to Dismiss the Objection or in the Alternative Motion for Summary Judgment
(Motion).1 Having considered the Motion, the Debtors’ response, and the United States’
reply, the Court is now ready to rule. The United States (also referred to herein as IRS) appears
by Stephanie M. Page. Debtors Donald W. Dawes and Phyllis C. Dawes appear by Mark J.

1 Doc. 250.

Lazzo. There are no other appearances. The Court has jurisdiction.2 For the reasons stated
below, the Court holds that Debtors’ objection to the amount of the United States’ claim for
unpaid income taxes, penalty, and interest is denied.


The IRS is the principal creditor in this Chapter 12 case, which was initially filed under
Chapter 7 by the Debtors, pro se. The IRS filed a proof of claim for $1,747,841.53.3 On January
29, 2008, Debtors filed an objection.4 They assert that of the $1,747,841.53 claimed, 94% or
$1,654,145.61 is attributable to claims of principal, interest, and penalties on 1982 and 1983
income taxes, which tax liabilities are based upon erroneous substituted returns prepared by the
IRS which determined taxes due in the amounts of $86,783 for 1982 and $55,224.00 for 1983.
Debtors allege that they have now completed their own returns for 1982 and 1983 income taxes
which show that the true taxes due are $8,892 for 1982 and $4,366 for 1983.

The IRS responded with the Motion now under advisement. It argues that Debtors’
objection must be denied because the amount of taxes, interest, and penalties due for 1982 and
1983 are res judicata based upon Debtors’ prepetition litigation in the United States Tax Court.
Debtors refute the IRS’ position, asserting that res judicata does not apply because their claim

2 This Court has jurisdiction pursuant to 28 U.S.C. § 157(a) and §§ 1334(a) and (b) and the
Standing Order of the United States District Court for the District of Kansas that exercised authority
conferred by § 157(a) to refer to the District’s Bankruptcy judges all matters under the Bankruptcy Code
and all proceedings arising under the Code or arising in or related to a case under the Code, effective July
10, 1984. The allowance or disallowance of claims against the estate is a core proceeding which this
Court may hear and determine as provided in 28 U.S.C. § 157(b)(2)(B). There is no objection to venue or
jurisdiction over the parties.

3 After the sale of real property which was subject to the IRS’s tax lien and application of the
proceeds to a portion of the claim, the IRS on February 12, 2008 filed an amended proof of claim for

4 Doc. 238.


objection is based upon a claim for tax refund for overpayment of 1982 taxes and the elements of
res judicata are not present since the Tax Court proceeding was dismissed for lack of


The Court will regard the IRS’ Motion as one for summary judgment, rather than a
motion to dismiss.5 Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.”6 A genuine issue of material fact is a factual dispute that may affect the outcome of the
case and one that a reasonable trier of fact could find in favor of either party.7 “[T]he plain
language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
on which that t party will bear the burden of proof at trial.”8

5 An objection to claim initiates a contested matter. Fed. R. Bankr. P. 3007. Bankruptcy Rule
7056, governing motions for summary judgment, applies in contested matters, but Bankruptcy Rule 7012,
which incorporates Federal Rule 12 addressing motions to dismiss for failure to state a claim, does not.
Fed. R. Bankr. P. 9014(c). However, if Rule 7012 were applicable, it would require that the IRS’s
motion, which refers to matters outside the pleadings, be considered a motion for summary judgment.
Fed. R. Bankr. P. 7012(b) and Fed. R. Civ. P. 12(c).

6 Fed. R. Civ. P. 56(c). Future references to the rules in the text shall be to the rule number only.

7 Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986).

8 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


The initial burden is on the moving party to establish the absence of a genuine issue
concerning any material fact.9 “‘[T]he party moving for summary judgment has the burden to
show that he is entitled to judgment under established principles; and if he does not discharge
that burden then he is not entitled to judgment. No defense to an insufficient showing is
required.’”10 However, when the moving party does meet the initial burden, the nonmoving
party may defeat the motion for summary judgment by presenting evidence from which a trier of
fact might return a verdict in its favor.11 In determining this, all evidence and inferences are
viewed in the light most favorable to the nonmoving party.12

Because Debtors failed to file income tax returns, the IRS filed substitutes for returns
pursuant to 26 U.S.C. § 6020(b) for Debtors’ 1982 and 1983 income taxes. A Notice of
Deficiency dated November 25, 1991, advised Debtors of increase in taxes due of $86,783 for
tax year 1982 and of $55,224 for tax year 1983, and related penalties and interest. It advised that
“if you want to contest this deficiency in court before making any payment, you have 90 days
from the above mailing date of this letter . . . to file a petition with the United States Tax Court
for a redetermination of the deficiency.”

On February 19, 1992, Debtors filed a petition in Tax Court challenging the deficiencies.
According to the Tax Court docket sheet, the following occurred: The Respondent (the IRS)

9 Adikes v. Kress & Co., 398 U.S. 144, 159-160 (1970).

10 Id., 398 U.S. at 161, quoting J. Moore, Federal Practice ¶ 56.22[2], pp. 2824-2825 (2d ed.


11 Anderson v. Liberty Lobby, Inc.,477 U.S. at 257.

12 Id., 477 U.S. at 255.


filed an answer on April 21, 1992; there was no counterclaim filed by the IRS; on May 13, 1993

notice of trial set for October 18, 1993 was given; the IRS filed two motions to compel, to which

Debtors did not respond; and the case came on for hearing on October 18, 1993. The transcript

of that hearing, at which Respondent appeared by David G. Hendricks and Debtors did not

appear, includes the following:

MR. HENDRICKS: . . . Pursuant to a conference call on

October 14, Petitioner, who lives in western Kansas, was excused

from appearing today. Petitioner requested the trial be set at the

latter part of the calendar. Respondent will advise Petitioner of the

date and time the case is set for trial.

THE COURT: Mr. Hendricks, do you think the taxpayers

are going to trial in this case? From the conference call I got the

distinct impression they had no documents and nothing to offer.

MR. HENDRICKS: I would be surprised. As I say, the

Respondent’s case was developed in great detail during the

criminal portion of the case and I would doubt that there are any

significant variations between what is in the notice of deficiency

and what records they might come up with.

* * *

THE COURT: My concern is I don’t want to set it, for

example, for Wednesday of next week and sit here in Oklahoma

City waiting to find out that they are not going to appear, or if they

appear, that they are simply going to default.

I would like to recall this case on Friday. Tell the taxpayers

- - if you contact them tell them that I want to know if they are

definitely going to show up and if they are going to trial . . ..

The case was recalled at 2:15 PM on October 22, 1993. At that hearing, the IRS was granted

leave to file a motion to dismiss. The transcript of that hearing, at which David G. Hendricks

appeared for the Respondent and Debtors did not appear, includes the following:

THE COURT: . . .
Now, as I recall, Mr. Hendricks, during the conference call

yesterday, I understood that Mrs. Dawes was to contact you before

2:00 today, if she wished the Court to set the case for trial next

MR. HENDRICKS: I believe she had the Court’s telephone

number and - THE
COURT: That is right. She had my number, also.
MR. HENDRICKS: And it was my understanding that she

would contact the Court. Of course, she has my number, also, and
if she had run into any problems, I can only assume that she would
have then called myself.

THE COURT: Well, she did not call me, and I just want to
make sure the record was clear.

Respondent’s motion to dismiss for lack of prosecution will
be granted, and decision will be entered for the full amount of the
deficiencies and the additions to tax, as set forth in the statutory
notice of deficiency.

The granting of the motion to dismiss for lack of prosecution is reflected in an Order of
Dismissal and Decision, entered on the docket on December 1, 1993. As to the taxes for 1982
and 1983, the Tax Court ordered and decided that there were deficiencies in income tax and
additions to tax from the Dawes in the amounts stated in the November 25, 1991 Notice of
Deficiency. Debtor Donald Dawes asserts by affidavit, on his own behalf and on behalf of his
wife, “[w]e were not aware that our abandonment of our petition in the Tax Court case could
result in a final Order by the Tax Court as to taxes due for 1982 and 1983.”

In April 2003, the United States brought an action against Debtors in the United States
District Court to, among other things, reduce the Debtors’ 1982 and 1983 unpaid tax assessments
to judgment.13 Debtors, as parties to the action, filed responsive pleadings and participated in
discovery. On September 21, 2004, the United States was granted summary judgment on its
claim for unpaid income tax liabilities and other matters. A judgment was entered against the
Dawes in favor of the United States for the assessed balance on their 1982 and 1983 income

13 United States v. Donald W. Dawes, et al., No. 03-1132-JTM (D. Kan. filed April 23, 2003).

taxes, including accrued interest and other statutory additions. Debtors appealed to the Tenth
Circuit Court of Appeals, but the judgment was affirmed.14

After this case was filed on July 14, 2006, the IRS was granted relief from stay to sell
certain of Debtors’ real property which was subject to a tax lien.15 Sale proceeds in the amount
of $947,000 were deposited into the registry of the District Court and disbursement made to the

The IRS contends that res judicata bars the Debtors from objecting to the amount of 1982
and 1983 income taxes, interest, and penalties.17 Debtors respond that res judicata does not bar
their objection to claim for two primary reasons: (1) Because their claim is for refund of taxes
paid under 26 U.S.C. § 6511, a claim which could not have been made in the Tax Court or the
District Court litigation; and (2) because of lack of notice as to the consequences of allowing
dismissal of the Tax Court proceeding for lack of prosecution, there was not a full and fair
opportunity to litigate the amount of 1982 and 1983 taxes in the Tax Court.

As in this case, when taxpayers receive a statutory notice of income tax deficiency, there
are two means to challenge the accuracy of the determination: (1) File a petition for

14 Dawes v. United States, No. 04-3454 (10th Cir., docketed Dec. 1, 2004).

15 Doc. 47.

16 United States v. Donald W. Dawes, et al., No. 03-1132-JTM, docs. 56 and 58.

17 In its initial brief, the IRS also contends that the Court is precluded from entertaining Debtors’
request to redetermine their 1982 and 1983 taxes by the res judicata effect of the district court decision in
United States v. Dawes and § 505(b) of the Bankruptcy Code. Doc. 250. The Court finds it unnecessary
to address these contentions, which have not been fully briefed.


redetermination with the Tax Court within the applicable time limit;18 or (2) pay the taxes and
bring a refund action in the federal courts.19 If the first option is chosen, once the Tax Court
acquires jurisdiction to determine the deficiency, that authority includes redetermination of the
amount of the deficiency, even if it exceeds the amount stated in the notice of deficiency.20
Further, the Tax Court’s jurisdiction is exclusive, and after filing the petition “no suit by the
taxpayer for the recovery of any part of the tax shall be instituted in any court,” except in narrow
circumstances which are not present here.21 If a taxpayer files a petition for redetermination of
deficiency, the action is concluded by the filing of a written decision which includes the amount
of deficiency.22 If the decision is one dismissing the action for other than lack of jurisdiction, it
is considered a decision that the amount of the deficiency is as set forth in the notice of
deficiency.23 If a notice of appeal is not filed within 90 days,24 the Tax Court determination
becomes final.25

18 26 U.S.C. § 6214.
19 See 28 U.S.C. § 1346.
20 26 U.S.C. § 6214.
21 26 U.S.C. § 6512(a).
22 26 U.S.C. § 7459(a) - (c).
23 26 U.S.C. § 7459(d).
24 26 U.S.C. § 7483.
25 26 U.S.C. § 7481(a)(1).


Final judgments of the Tax Court are accorded res judicata effect.26 Thus, if a “claim of
tax liability or non-liability relating to a particular tax year is litigated [in Tax Court], judgment
on merits is res judicata as to any subsequent proceeding involving the same claim and same tax
year.”27 In the Tenth Circuit, “res judicata requires the satisfaction of four elements: (1) the prior
suit must have ended with a judgment on the merits; (2) the parties must be identical or in
privity; (3) the suit must be based on the same cause of action; and (4) the party must have had a
full and fair opportunity to litigate the claim in the prior suit.”28

The Court agrees with the IRS that each of those elements is present here. The first
element is present since the Tax Court’s dismissal of the Dawes’ action for lack of prosecution
was a final judgment on the merits.29 The Internal Revenue Code expressly provides that a Tax
Court order of dismissal shall be considered as a decision that the amount of deficiency is as
determined by the deficiency notice. It provides:

If a petition for a redetermination of a deficiency has been filed by
the taxpayer, a decision of the Tax Court dismissing the
proceeding shall be considered as its decision that the deficiency is
the amount determined by the Secretary. An order specifying such
amount shall be entered in the records of the Tax Court unless the
Tax Court cannot determine such amount from the record in the
proceeding, or unless the dismissal is for lack of jurisdiction.30

26 Comm’r v. Sunnen, 333 U.S. 591 (1948); see Comm’r v. Texas-Empire Pipe Line Co., 176 F.2d
523 (10th Cir. 1949).
27 Comm’r v. Sunnen, 333 U.S. at 599.
28 Educ. Credit Mgmt Corp. v. Mersmann (In re Mersmann), 505 F.3d 1033, 1049 (10th Cir.
2007), citing Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir.1997).
29 Pena v. United States, 883 F. Supp. 154, 157 (D.S.D. Tex. 1994), citing Fiorentino v. United
States, 226 F.2d 619, 621 (3rd Cir. 1955).
30 26 U.S.C. § 7459(d).

In accord with the statute, the Order of Dismissal and Decision found the deficiencies for tax
years 1982 and 1983 were as stated in the Notice of Deficiency and expressly set forth those
amounts. Dawes did not appeal the decision. As to the second element, the parties in the Tax
Court proceeding were the Dawes and the United States, the same parties as in this objection to
claim contested matter. The third element is satisfied since the Tax Court action and this action
involve the identical issue - the amount of income tax deficiency for tax years 1982 and 1983.
Finally, Dawes had a full and fair opportunity to litigate that issue in the Tax Court. The Dawes
filed the Tax Court action, thereby invoking its jurisdiction to redetermine the deficiency. As
reflected in the portions of the transcript of the Tax Court proceedings set forth in the findings of
fact, the Dawes were given notice of the opportunity for hearing and elected not to appear. The
Tax Court determination of the deficiency, including the tax and other amounts, is res judicata,
and this Court may not entertain a contention that it is not correct.

Debtors’ arguments that res judicata does not apply are creative, but not sufficient. First
Debtors argue that the claim asserted here is not identical to the issue before the Tax Court.
They characterize the present controversy as a refund claim under 26 U.S.C. § 6511 for
overpayment of 1982 income taxes based upon the postpetition applications of the proceeds from
the sale of real property. When making this argument, they allege a right to pursue a refund
action under 26 U.S.C. § 6511(a). However, this position is barred by 26 U.S.C. § 6512, which
prohibits, except in limited circumstances not present here, refund suits for amounts found due
by the Tax Court. It provides in part:

(a) Effect of petition to Tax Court.--If the Secretary has mailed to
the taxpayer a notice of deficiency under section 6212(a) (relating
to deficiencies of income, estate, gift, and certain excise taxes) and

if the taxpayer files a petition with the Tax Court within the time
prescribed in section 6213(a) . . ., no credit or refund of income tax
for the same taxable year, . . . to which such petition relates, in
respect of which the Secretary has determined the deficiency shall
be allowed or made and no suit by the taxpayer for the recovery of
any part of the tax shall be instituted in any court . . .31

In this case, Debtors filed a petition in Tax Court with respect to the secretary’s assessment of a
deficiency for 1982 and 1983 taxes. To the extent that Dawes’ objection to claim is a suit for
recovery of taxes paid for 1982 or 1983, it is barred.

Debtors’ arguments are similar to those found insufficient in Skinner v. United States.32
In 1992, the IRS had issued a notice of deficiency for 1988 taxes. The taxpayer filed a timely
petition in the Tax Court, and the Tax Court by order dated March 14, 1994 dismissed the case
due to the taxpayers failure to prosecute the case. Over five years later, the taxpayer filed a
complaint for refund of taxes for 1988. The Court granted the IRS’s motion to dismiss for lack
of jurisdiction. The taxpayer’s resort to the Tax Court ended his opportunity to litigate the
amount of his 1988 taxes in federal court.

Next the Debtors contend that the Tax Court did not determine the deficiency amount.
This argument is based upon the erroneous assumption that the Tax Court proceedings was
review of a jeopardy assessment. It is true that as to jeopardy assessments, the reviewing court
determines only if the assessment is reasonable, not the actual tax liability.33 Section § 686134 of

31 26 U.S.C. § 6512. The prohibition has certain statutory exceptions, such as when the taxes
collected exceed those found due by the Tax Court, but Debtors do not rely upon any of these exceptions.
32 2000 WL 206262, 85 A.F.T.R. 2d 2000-788 (Fed.Cl., 2000).
33 See Davis v. United States, 511 F. Supp. 193, 196-97 (D. Kan. 1981).
34 26 U.S.C. § 6861.

the Tax Code provides for jeopardy assessments when collection of a tax will be jeopardized by
delay. It provides in part:

If the Secretary believes that the assessment or collection of a
deficiency, as defined in section 6211, will be jeopardized by
delay, he shall, notwithstanding the provisions of section 6213(a),
immediately assess such deficiency (together with all interest,
additional amounts, and additions to the tax provided for by law),
and notice and demand shall be made by the Secretary for the
payment thereof.

There is no evidence that the IRS made a jeopardy assessment with respect to the Dawes’ taxes
for 1982 and 1983. The notice sent to the Dawes as to the income taxes and other amounts due
for 1982 and 1983 taxes was not a jeopardy assessment - it was a Notice of Deficiency. The
Dawes’ Tax Court petition was filed to challenge the deficiency notice. The Tax Court had
jurisdiction to redetermine the amount of the deficiency35 and did so in its order dated December
1, 1993.

Finally, Debtors contend that the Tax Court determination is not res judicata because
Debtors were denied a full and fair opportunity to litigate the issue of the actual tax due. This
argument is based upon Debtors’ statement by affidavit that they were not aware that
abandonment of their challenge to the deficiency would result in a final order as to the amount of
taxes due. This factual assertion, assumed for purposes of analysis to be uncontroverted, is
insufficient to deny the res judicata effect of the Tax Court decision. This element of res judicata
requires a full and fair opportunity to litigate a claim, not either actual litigation36 or notice of the

35 26 U.S.C. § 6214.

36 See Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329 (10th Cir. 1988)
(finding preclusion even though the issue was not actually litigated because a motion to consolidate two


consequences of litigation choices. The presence of a full and fair opportunity to litigate assures
there was no procedural “deficiency that would undermine the fundamental fairness of the
original proceedings.”37 The standard seeks to assure that there was an opportunity to litigate, a
fact which cannot be doubted in this case. Dawes filed the action in the Tax Court, thereby
selecting a forum with jurisdiction to determine the deficiency amount and implicitly stating they
wished to utilize the opportunity provided by the Tax Code to litigate the proper amount of taxes
before payment. Further, the Tax Court transcripts evidence that Dawes were given notice of the
hearing opportunity and decided not to participate.

Dawes’ unilateral act of electing not to litigate and subjective lack of knowledge of the
consequence of that election do not equate to the absence of an opportunity to litigate. In this
Court’s opinion, the Dawes’ argument is irrational. They filed the Tax Court action to challenge
the deficiency determination. Any result of dismissal for failure to litigate other than affirming
the amount of the deficiency would give taxpayers a victory even though no evidence was
offered and no arguments made. Certainly the Tax Code does not permit a taxpayer to defeat a
notice of deficiency by the act of filing a Tax Court challenge to the deficiency and then simply
choosing not to prosecute the case.

actions was denied); Nwosun v. Gen. Mills Rests., Inc., 124 F.3d at 1255 (granting dismissal to employer
based upon res judicata on state law employment discriminatory and retaliatory discharge claims where
the pro se plaintiff had an opportunity to litigate those claims in a previous Title VII case in federal

37 In re Mersmann, 505 F.3d at 1049, citing Petromanagement Corp. v. Acme-Thomas Joint
Venture, 835 F.2d at 1334.


This case is very similar to Pena,38 in which the District Court dismissed a taxpayer’s
income tax refund suit based upon statutory and res judicata grounds. Upon audit of the
taxpayers’ return for 1971, the IRS issued a Notice of Deficiency to the taxpayers in December
1975. The Penas timely filed a petition in Tax Court challenging the deficiency. The Tax court
suit was dismissed for lack of prosecution on July 21, 1983, and the order of dismissal stated the
amount of the deficiency. The Penas did not appeal. While the Tax Court proceeding was still
pending, the IRS seized assets that were to be distributed in satisfaction of the taxes. After the
IRS denied a refund, the Penas filed an action in Federal District Court seeking a refund by
challenging their liability for 1971 taxes. On the motion of the United States, the Court
dismissed the action. First, it held the suit barred by 26 U.S.C. § 6512(a), quoted above. It held
that the jurisdictional statute operated to prohibit any action for recovery of taxes for the taxable
year which was at issue in the Tax Court proceedings. The court also held the refund suit barred
by the doctrine of res judicata. It stated:

In the case at bar, all of the conditions of res judicata are met. The
doctrines of res judicata and “claim preclusion” are designed to
insure the finality of judgments and thereby conserve judicial
resources and protect litigants from multiple lawsuits. . . .

First, the parties in this action, the Penas and the United States, are
identical to those in the Tax Court. Second, the Tax Court is
without question a court of competent jurisdiction for this type of
dispute. Third, the Tax Court's dismissal of the Penas' action for
want of prosecution was a final judgment on the merits. See
United States v. Rochelle, 363 F.2d at 229; Fed. R. Civ. P. 41(b).
As the Third Circuit stated in Fiorentino:

The taxpayer did file his suit for redetermination
with the Tax Court. The Tax Court eventually
dismissed for lack of prosecution. The taxpayer

38 Pena v. United States, 883 F. Supp. at 154.

could have appealed to the Court of Appeals. He
did not. The statute, we think, very effectively bars
the suit in district court for recovery of the alleged
overpayment. There is good authority squarely on
the point that a dismissal for want of prosecution is
a sufficient determination of the case by the Tax
Court to bar the taxpayer from proceeding in district

Fiorentino v. United States, 226 F.2d 619, 621 (3d Cir.1955)
(citing Monjar v. Higgins, 132 F.2d 990 (2d Cir.1943)). As noted
above, the Penas' tax liability for the 1971 tax year was decided by
the Tax Court in 1983. The Penas did not appeal the Tax Court
decision to the Fifth Circuit and it became final. Finally, the Penas
have brought the same cause of action in this court, contesting
their tax liability for the year 1971, an issue that was previously
determined by the Tax Court. A comparison of the petition the
Penas filed in Tax Court and the complaint the Penas filed in this
court reveals that both actions challenge the Penas' liability for
1971 income taxes. Therefore, because all four conditions for the
application of the doctrine of res judicata are present, relitigation
of the Penas' tax liability for the year 1971 is barred as a matter of

The Court therefore agrees with the IRS that Debtors’ objection to the proof of claim for

1982 and 1983 taxes and additional charges is barred by statute and by the doctrine of res

judicata. The objection to claim seeks to have the taxes due for 1982 and 1983 determined based

upon recently prepared income tax returns, contending that the returns prepared by the IRS

which were the basis for the Notice of Deficiency were erroneous. Debtors are barred by statute

and by the doctrine of res judicata from challenging the proof of claim on this basis.


For the foregoing reasons, the IRS is granted summary judgment on its opposition to the

Debtors’ objection to the IRS’s proof of claim as to liability arising from 1982 and 1983 income

39 Id., 883 F. Supp. at 157.


taxes. Since the extent of liability for 1982 and 1983 taxes is the only basis for the objection to
the Proof of Claim, the objection shall be denied and judgment entered accordingly.

# # #



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