Articles Posted in U.S. 7th Circuit Court of Appeals

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In 2008 the Kathreins challenged Evanston’s Affordable Housing Demolition Tax under the Fifth and Fourteenth Amendments. The Tax required a property owner seeking to demolish any residential building to pay the greater of $10,000 per building, or $3,000 per unit. The measure is to “provide a source of funding for the creation, maintenance, and improvement of safe and decent affordable housing; proceeds go to the city’s Affordable Housing Fund. The Kathreins alleged that a developer, learning of the Tax, lowered his bid on their property. The sale fell through. The Kathreins also alleged the unconstitutionality of the Tax Injunction Act (TIA), 28 U.S.C. 1341, which forbids federal courts to enjoin assessment or collection “of any tax under State law,” so long as there is a remedy in state court. The district court dismissed. A Seventh Circuit panel reversed in part, holding that the Demolition Tax was a regulatory device, not a tax under the TIA, because it provided a deterrent against demolition of residential buildings and raised little revenue. Before the district court could resolve remaining claims on remand, the Seventh Circuit, en banc, rejected the approach to identifying a tax taken in the Kathrein case, holding that an “exaction[] designed to generate revenue” was a tax, contrasted to fines “designed … to punish,” and fees that “compensate for a service,” but did not directly overrule the Kathrein decision. The district court applied the new holding and again dismissed. The Seventh Circuit affirmed, stating that the decision of the en banc court did effect an intervening change in the law. View "Kathrein v. City of Evanston, IL" on Justia Law

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Ogletree ran a tax preparation service. Robtrel and Larryl provided Ogletree with birth dates and social security numbers of individuals unlikely to file tax returns; Ogletree filed false returns using that information and her Electronic Filers Identification Number. They also generated false W2 statements to support the claims. In 2006 Ogletree filed 200 fraudulent returns, seeking refunds of $834,548. The actual loss to the IRS was $652,730.In 2007, Robtrel established a tax business and obtained EFINs for new tax preparation entities. Ogletree claims she withdrew from the conspiracy and did not file fraudulent tax returns in 2007 or later. Robtrel and Larryl continued the scheme into 2008, when they were caught. Charged with conspiracy to defraud the U.S. government, 18 U.S.C. 286, and presenting a false claim against the IRS, 18 U.S.C. 287 and 2, Robtrel and Larryl pleaded guilty, but Ogletree went to trial. Her attorney did not present any witnesses, but argued that the government did not establish that Ogletree had joined the conspiracy or knowingly filed false returns, noting that the witnesses all identified Robtrel and Larryl and that no one had identified Ogletree. She was convicted and sentenced to 51 months imprisonment, the low end of the sentencing range. The Seventh Circuit affirmed her sentence, rejecting challenges to the loss calculation, to a finding that she participated in the tax fraud scheme in 2007, and that the district court did not adequately consider the section 3553 sentencing factors. View "United States v. Williams-Ogletree" on Justia Law

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In 2006 Finkl, a Chicago steel producer, initiated termination of its defined benefit pension plan under the Employment Retirement Income Security Act, apparently anticipating merger with another company. The Plan was amended in 2008, to include Section 11.6, a special provision for distributions in connection with the contemplated termination, to apply if a participant “ha[d] not begun to receive a benefit under the Plan at the time benefits are to be distributed on account of termination of the Plan.” In May 2008, Finkl decided not to terminate the Plan. Section 11.6 was deleted. Finkl notified the IRS that the Plan was not going to terminate. Seven Finkl employees sued, alleging that they were entitled to an immediate distribution of benefits while they were still working for Finkl and that repeal of Section 11.6 violated the anti-cutback terms of the Plan, I.R.C. 411(d)(6), and ERISA, 29 U.S.C. 1054(g). The IRS sent Finkl a favorable determination letter that the Plan had retained its tax qualified status. In 2011, the Seventh Circuit affirmed the district court’s award of summary judgment to Finkl. The employees then pursued a claim in the Tax Court, which ruled that they were collaterally estopped by the Seventh Circuit decision from challenging the 2009, determination letter, which concluded that the Plan had not been terminated and continued to qualify for favorable tax treatment. The Seventh Circuit affirmed. View "Carter v. Comm'r of Internal Revenue" on Justia Law

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In 2009 Betty and Wayne submitted a tax return on behalf of a Betty Phillips Trust, signed by Betty, who was listed as the trustee, claiming income of $47,997. A second return on behalf of a Wayne Phillips trust, was signed by Wayne, but Betty was listed as trustee. This return reported income of $1,057,585. Both returns claimed that all income had gone to pay fiduciary fees, so that the trusts had no taxable income. The Wayne Trust claimed a refund of $352,528. The Betty Trust claimed $15,999. The IRS issued a check for $352,528. They endorsed the check and deposited it into a joint account. The returns were fraudulent. The IRS had no record of any taxes being paid by the trusts. In December, the IRS served summonses. That month, the couple withdrew $244,137 remaining from their refund proceeds using 13 different locations. They followed the same strategy the next year, but did not receive checks. A jury convicted Betty of conspiracy to defraud the government with respect to claims (18 U.S.C. 286), and of knowingly making a false claim to the government (18 U.S.C. 287.1). The district court sentenced her to 41 months’ imprisonment and ordered them to pay $352,528 in restitution. The Seventh Circuit affirmed, rejecting claims that the court improperly admitted evidence, and that the government constructively amended the indictment and violated Betty’s right against self‐incrimination. View "United States v. Phillips" on Justia Law

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EAR, a subchapter S corporation, filed for Chapter 11 bankruptcy. In the years before its petition, EAR made federal income tax payments on behalf of its shareholders; eight of the payments in the two years preceding its petition. Once in Chapter 11, EAR, acting as debtor in possession, filed an adversary complaint against the government seeking to recover all nine payments as fraudulent transfers: the eight most recent payments under 11 U.S.C. 548(a)(1), which provides for recovery of transfers made within two years of the filing, and the ninth under 11 U.S.C. 544(b), which enables a trustee to bring a state‐law fraudulent‐transfer action. EAR asserted that the IRS was precluded from raising sovereign immunity as a defense. The U.S. agreed to disgorge the eight payments, but contested EAR’s ability to recover the ninth payment under 544(b). The bankruptcy court rejected the government’s theory, finding that 11 U.S.C. 106(a)(1) abolished federal immunity from suit under listed bankruptcy causes of action, including section 544. The district court affirmed. The Seventh Circuit reversed, holding that 106(a)(1) does not displace the actual‐creditor requirement in section 544(b)(1). Ordinarily, a creditor cannot bring an Illinois fraudulent‐transfer claim against the IRS; therefore, under 544(b)(1), neither can the debtor in possession. View "United States v. Equip. Acquisition Res., Inc." on Justia Law

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Kovacs received a bankruptcy discharge of her debts in 2001. weeks later, the IRS notified her that it had applied part of her 2000 tax refund to her outstanding tax debts from tax years 1990 to 1995. Kovacs’s attorneys and the IRS went back and forth about the status of those debts, with the IRS claiming that Kovacs still owed more than $150,000. In 2003 IRS Officer Mulcahy informed Kovacs that the 2000 refund would be applied against her non-discharged 1999 tax debt. Despite that statement, the IRS sent Kovacs two letters, erroneously stating that Kovacs still owed more than $13,000 for 1990–1995; those debts had been discharged. Her attorneys wrote a note clarifying the status of the discharged debt in correspondence about Kovacs’s non‐discharged 1999 tax debt. In 2005, Kovacs filed an administrative claim against the IRS, under 26 U.S.C. 7430(b)(1) as a predicate to a lawsuit for violation of 11 U.S.C. 524(a). When the IRS did not respond, Kovacs filed a complaint. The IRS admitted its fault but argued that the two-year statute of limitations barred the action. After a third remand, the district court upheld the bankruptcy court’s $3,750 award and declared that the award was premised on litigation costs, not actual damages. The Seventh Circuit affirmed. View "Kovacs v. United States" on Justia Law

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If an owner of Illinois real estate does not timely pay county property taxes, the county may “sell” the property to a tax purchaser. The tax purchaser does not receive title to the property, but receives a “Certificate of Purchase” which can be used to obtain title if the delinquent taxpayer does not redeem his property within about two years. In this case, the property owner entered bankruptcy during the redemption period. The bankruptcy court held that, if there is still time to redeem, the tax purchaser’s interest is a secured claim that is treatable in bankruptcy and modifiable in a Chapter 13 plan. The district court and Seventh Circuit affirmed, first noting that the owner’s Chapter 13 plan was a success; because the tax purchaser’s interest was properly treated as a secured claim, the owner has satisfied the obligation, 11 U.S.C. 1327. Because Illinois courts call a Certificate of Purchase a lien or a species of personal property, the court rejected the purchaser’s argument that it was a future interest or an executory interest in real property. In effect, the tax sale procedure sells the county’s equitable remedy to the tax purchaser. View "Alexandrov v. LaMont" on Justia Law

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The Seventh Circuit considered appeals by Illinois and Illinois counties and a Wisconsin county of district court holdings that those governmental bodies cannot levy a tax on sales of real property by Fannie Mae (Federal National Mortgage Association) and Freddie Mac (Federal Home Loan Mortgage Corporation). Although both are now private corporations, the relevant statutes provide that they are “exempt from all taxation now or hereafter imposed by any State … or local taxing authority, except that any real property of the corporation shall be subject to State … or local taxation to the same extent as other real property,” 12 U.S.C. 1723a(c)(2), 12 U.S.C. 1452(e). The Seventh Circuit affirmed. A transfer tax is not a tax on realty. After 2008 Fannie Mae owned an immense inventory of defaulted and overvalued subprime mortgages and is under conservatorship by the Federal Housing Finance Agency. The states essentially requested the court to “pierce the veil,” in recognition of the fact that if the tax is paid, it will be paid from assets or income of Fannie Mae or Freddie Mac, but their conservator is the United States, and the assets and income are those of entities charged with a federal duty. View "Milwaukee Cnty v. Fed. Nat'l Mortg. Ass'n" on Justia Law

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The Berkowitz family has a history of IRS problems. Yair began participating in his father’s schemes in 1999, acquiring the information of dead people and federal prisoners to prepare fraudulent tax returns. Between 2003 and 2009, 58 individuals received refund checks in a conspiracy that involved more than 3,000 false state and federal tax returns. Yair received tax returns from Marvin in Israel, mailed the returns from various U.S. postal codes to avoid IRS suspicion, and controlled accounts where proceeds were deposited. When refund checks issued, Yair traveled to pick them up and made payments to co‐conspirators. In 2006, IRS agents told Yair that money he received from Marvin was obtained by fraud. Yair denied knowledge of the scheme. He began to reduce his direct involvement, but continued to receive money from the scheme and met with an undercover IRS agent about expanding the fraud. The scheme was uncovered. Yair, Marvin, and others were charged with conspiracy to defraud the IRS, wire fraud, and mail fraud. Yair pleaded guilty only to wire fraud based on a 2006 PayPal transfer of $250. At sentencing, the district court followed the Presentence Report’s recommendation and ordered Yair to pay more than $4 million in restitution along with his prison sentence; his liability was joint and several with his co‐defendants. The Seventh Circuit found the award appropriate and affirmed. View "Unted States v. Berkowitz" on Justia Law

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In 2007 Hobart, Wisconsin passed an ordinance assessing stormwater management fees on all parcels in the village, including land owned by the Oneida Nation of Wisconsin, an Indian tribe, to finance construction and operation of a stormwater management system. Title to 148 parcels in Hobart, about 1400 acres or 6.6 percent of the village’s total land, is held by the United States in trust for the Oneida tribe (25 U.S.C. 465). Tribal land is interspersed with non-tribal land in a “checkerboard” pattern. The tribe sought a declaratory judgment that the assessment could not lawfully be imposed on it. Hobart argued that if that were true, the federal government must pay the fees; it filed a third‐party complaint against the United States. The district court entered summary judgment for the tribe and dismissed the third‐party claim. The Seventh Circuit affirmed, holding that the federal Clean Water Act did not submit the land to state taxing jurisdiction and that the government’s status as trustee rather than merely donor of tribal lands is designed to preserve tribal sovereignty, not to make the federal government pay tribal debts. View "Oneida Tribe of Indians of WI v. Village of Hobart, WI" on Justia Law