USA v. Dustin Bogart, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, KRAUSE and NYGAARD, Circuit Judges. Total Pages: 16. The Bogarts' "criminal complaint" and motion to vacate judgment and sale are denied. The motion to recuse is denied. [15-2363, 16-1451]

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 15-2363 & 16-1451
___________
UNITED STATES OF AMERICA
v.
DUSTIN B. BOGART;
SOUTHERN COUNTRY RANCH;
MARCY A. BOGART
Dustin B. Bogart; Marcy A. Bogart,
Appellants
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 4-12-cv-00347)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
on June 22, 2017
Before: AMBRO, KRAUSE, and NYGAARD, Circuit Judges
(Opinion filed: October 27, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Dustin and Marcy Bogart appeal from the orders of the United States District
Court for the Middle District of Pennsylvania granting the United States’ motions for
summary judgment and for order of sale, and denying their post-judgment motions for
relief. For the following reasons, we will affirm the grant of summary judgment and
order of sale, but will vacate, in part, the order denying the post-judgment motions, and
will remand the matter.
I.
Appellee United States made assessments against Dustin Bogart for unpaid taxes
for the years 2000-2003. Bogart failed to pay the assessments, and the Government filed
suit in the Middle District of Tennessee to reduce to judgment the assessments, to
foreclose on federal tax liens against real property located in Tennessee, and to force a
sale of the property, pursuant to 26 U.S.C. § 7403. It also named as defendants Bogart’s
wife, Marcy, and Southern Country Ranch (SCR), an unincorporated business trust
organization (UBTO), because they might claim an interest in the property. See 26
U.S.C. § 7403(b).
In July 2014, the District Court granted summary judgment in favor of the United
States. See United States v. Bogart, No. 3:12-cv-179, 2014 WL 3670043 (M.D. Tenn.
July 24, 2014). It determined that the Government had established, through Certificates
of Assessments and Payments, that Bogart had a tax liability exceeding $300,000
(including penalties and interest). It rejected the Bogarts’ “tax protester” arguments and
their attacks on the reliability of the Certificates of Assessments and Payments. It
credited the Government’s evidence in support of its claim that Bogart had engaged in a
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tax-evasion scheme to shield his income and assets from the Government by creating
several UBTOs, including SCR, to hide his income. The District Court concluded that
Bogart was the equitable owner of the Tennessee property and that SCR held title to the
property as Bogart’s nominee or alter ego.1
Meanwhile, the United States filed this companion action against the same
defendants2 in the Middle District of Pennsylvania, seeking a declaration regarding the
validity of tax liens against real property located at 792 Brush Valley Road (also known
as RR 5 Box #1100), Sunbury, Pennsylvania (“the Pennsylvania property”), and a
judicial sale of the property. The District Court, adopting the Magistrate Judge’s Report
and Recommendation (“R&R”), granted summary judgment in favor of the Government.
The Court rejected the Bogarts’ arguments that the tax liability was unlawful and
improper as barred by res judicata resulting from the District Court’s judgment in
Tennessee. It also found that the Bogarts failed to dispute the Government’s evidence,
which established the Bogarts were the equitable owners of the Pennsylvania property,
and that SCR held title to the property as their nominee/alter ego. As a result, the Court
held that the United States was entitled to satisfy the tax liabilities by foreclosing on the
Pennsylvania property. The Government subsequently filed a motion for entry of an

1

The Bogarts appealed, and the Sixth Circuit affirmed the grant of summary judgment.
See C.A. No. 14-6225 (6th Cir. June 29, 2015).
2

Jerry Speer, listed as a trustee of SCR, was added as a defendant to the Pennsylvania
suit.
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order of sale pursuant to 28 U.S.C. §§ 2001 and 2002, which the District Court granted.
The Bogarts appealed.3
After the Pennsylvania property was sold, the District Court granted the
Government’s motion for distribution of the sales proceeds. Pursuant to the Judgment of
Sale, all proceeds from the sale (less expenses) were distributed to the United States in
satisfaction of the lien. The Bogarts filed post-judgment motions, including a motion to
vacate the order authorizing distribution of sale proceeds. The District Court denied the
motions, and the Bogarts appealed. The two appeals have been consolidated for purposes
of disposition.

II.

3

This appeal, docketed at C.A. No. 15-2363, was filed more than sixty days after the
District Court’s order granting summary judgment. See Fed. R. App. P. 4(a)(1)(B)
(requiring that if the United States is a party, a notice of appeal in a civil case must be
filed within 60 days after the order appealed from is entered on the District Court’s
docket). The time limits for filing a notice of appeal are “mandatory and jurisdictional.”
Bowles v. Russell, 551 U.S. 205, 209 (2007) (citation omitted). We agree with the
Government, however, that the appeal was timely, as it was filed within sixty days of the
order granting a judgment of sale. See Burlington, C.R. & N. Railway Co. v. Simmons,
123 U.S. 52, 55-56 (1887) (focusing on whether the trial court had entered a decree of
sale in distinguishing between final and non-final orders in foreclosure cases). In
granting summary judgment in this case, the District Court concluded that the
Government was entitled to foreclose on the tax liens; this did not end the litigation on
the merits, however, as the Government had sought a sale of the property as part of its
relief. See Grant v. Phoenix Mut. Life Ins. Co., 106 U.S. 429, 431 (1882) (“[A] decree of
sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to
be done but to make the sale and pay out the proceeds, is a final decree for the purposes
of an appeal.”); accord Citibank, N.A. v. Data Lease Fin. Corp., 645 F.2d 333, 337 (5th
Cir. 1981); United States v. Davis, 815 F.3d 253, 256-57 (6th Cir. 2016). Accordingly,
the order of sale is a final, appealable order from which the notice of appeal was timely
filed.
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Summary Judgment
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a grant of
summary judgment. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.
1995). Summary judgment is proper where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Kaucher
v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006). We “view the facts and draw
inferences in the light most favorable to the nonmoving party,” and, as the Bogarts
proceed pro se, we must liberally construe their filings. Ray v. Township of Warren, 626
F.3d 170, 173 (3d Cir. 2010); Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010).
On appeal, the Bogarts persist with their challenges to the District Court’s
jurisdiction and to the legality of the tax assessments. They also argue that they were
denied discovery and a “mandatory” hearing pursuant to Fed. R. Civ. P. 12(i). It is clear
that the District Court had subject matter jurisdiction over this case. See 26 U.S.C.
§ 7402(a) (granting the district courts jurisdiction over civil actions brought pursuant to
§ 7403); 28 U.S.C. § 1340 (granting the district courts jurisdiction over “civil action[s]
arising under any Act of Congress providing for internal revenue”); 28 U.S.C. § 1345
(granting the district courts jurisdiction over “all civil actions, suits or proceedings
commenced by the United States”); see also United States v. Sloan, 939 F.2d 499, 501
(7th Cir. 1991) (rejecting “tax protester” arguments respecting jurisdiction). And we
agree with the District Court that they are barred by res judicata from arguing the validity
of the tax liabilities for the years 2000-2003. See C.I.R. v. Sunnen, 333 U.S. 591, 598
(1948) (“if a claim of liability or non-liability relating to a particular tax year is litigated,
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a judgment on the merits is res judicata as to any subsequent proceeding involving the
same claim and the same tax year”). Accordingly, the District Court did not abuse its
discretion in denying discovery of evidence related to the tax assessments.
Contrary to their contention on appeal, the Bogarts wholly failed to dispute the
Government’s evidence at summary judgment establishing that Dustin Bogart was indeed
the nominee of SCR and that he had used it to conceal his equitable ownership of the
Pennsylvania property.4 See G.M. Leasing Corp. v. United States, 429 U.S. 338, 351
(1977) (noting that the Government may properly levy against property of a delinquent
taxpayer’s alter ego); Shades Ridge Holding Co. v. United States, 888 F.2d 725, 728
(11th Cir. 1989) (“Property of the nominee or alter ego of a taxpayer is subject to the
collection of the taxpayer's tax liability.”). As the District Court noted, the Bogarts’
“affidavit” in response to the Government’s motion for summary judgment
focuses largely on [their] idiosyncratic view that they have no
taxable income, and fails to address in any meaningful way the
government’s evidence tying the Bogarts to an interlocking
web of UBTOs and bank accounts, trusts and accounts which
are used over time in a kaleidoscopic fashion to conceal the
ownership of certain properties and obscure the fact that
We note that, although the District Court determined that SCR was both the “nominee”
and “alter ego” of Bogart, the concepts are distinct. Under a nominee theory, the
Government may levy upon only those assets to which a third party holds legal title, but
from which the delinquent taxpayer enjoys the true beneficial ownership. See Oxford
Capital Corp. v. United States, 211 F.3d 280, 284 (5th Cir. 2000); In re Krause, 637 F.3d
1160, 1165 (10th Cir. 2011). Under an alter ego theory, however, the Government may
seize all of the assets of an alter ego corporation if the separate entity is merely a sham.
Oxford Capital Corp., 211 F.3d at 284. Nevertheless, we find that the distinction has no
bearing on this case, as there is no indication that SCR owns any assets other than the
Pennsylvania property, and the Government seeks to foreclose only on that asset.
Accordingly, whether SCR is the nominee or alter ego of Bogart, the effect on the
Government’s lien is the same. For ease, we will refer to SCR as Bogart’s nominee.
4

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payments relating to the enjoyment and use of those properties
are being made by the defendants using money derived from
their business.
R&R at 20-21.
The IRS is authorized to attach a lien on all “property and rights to property” of
any taxpayer who fails to pay federal taxes. 26 U.S.C. § 6321. Federal courts must look
to state law to determine the taxpayer’s ownership interest in the property, including the
question whether the titleholder is merely a nominee. See Drye v. United States, 528
U.S. 49, 58 (1999); United States v. Rodgers, 461 U.S. 677, 683 (1983). The District
Court considered the following factors in determining whether SCR was Bogart’s
nominee:
(1) whether little or no consideration or inadequate
consideration [was] paid by the nominee for an asset;
(2) whether the property was placed in the name of the
nominee in anticipation of a suit or occurrence of
liabilities while the transferor continues to exercise control
over the property; (3) the existence of a close relationship
between transferor and the nominee; (4) any failure to
record conveyance; (5) the retention of possession by the
transferor; (6) continued enjoyment by the transferor of
benefits of the transferred property; and (7) whether the
taxpayer expended personal funds to purchase and maintain
the property.
R&R at 30 (citing United States v. Klimek, 952 F. Supp. 1100, 1113 (E.D. Pa. 1997)).
These factors, which were also considered by the Sixth Circuit in determining whether
SCR was Bogart’s nominee with respect to the Tennessee property, parallel those
considered by Pennsylvania courts in determining whether a transfer of property is
fraudulently made to evade debts or other obligations. See e.g. Mid Penn Bank v. Farhat,
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74 A.3d 149, 153-54 (Pa. Super. Ct. 2013); see also Great Oak Building & Loan Ass’n v.
Rosenheim, 19 A.2d 95, 96 (Pa. 1941) (“An owner of real estate cannot transfer the
registered title to another, retaining the beneficial interest to himself and thereby escape
liability for taxes.”).
The District Court properly applied the above factors to the uncontested facts in
determining that “the bewildering array of UBTOs used by the Bogarts were simply
nominees and alter ego entities designed to frustrate a lawful tax levy.”5 There is little
we can add to the Magistrate Judge’s thorough report on this issue. Although the record
contains self-serving affidavits from the Bogarts, and an affidavit from Jerry Speer,
averring that Speer has been the Trustee of SCR since 2004, this evidence is insufficient
to create a genuine issue of fact in light of the overwhelming evidence SCR was merely a
nominee. See 26 U.S.C. § 6322; Fourth Inv. LP v. United States, 720 F.3d 1058, 1070
(9th Cir. 2013) (federal lien attaches where debtor or debtor’s nominee holds title to the
property at the time of assessment). In particular, the evidence demonstrated that Dustin
Bogart used funds from a bank account, to which the Bogarts were the only authorized
signatories, to pay off the mortgage for the Pennsylvania property in 2005 and to pay the
property taxes in 2006. See Nobel v. Morchesky, 697 F.2d 97, 103 (3d Cir. 1982)
(“Pennsylvania considers the person or entity ‘whose funds are used for the purchase of
real property the equitable owner of the property.’”) (citation omitted). Indeed, SCR had

5

It is not significant, for purposes of determining whether Dustin Bogart had an interest
in the Pennsylvania property, that the District Court also found that SCR was the
nominee of Marcy Bogart.
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no bank account associated with it from which to pay property expenses. Furthermore,
the property was transferred—for little consideration—twice in 2004, and again in 2005;
each time, Dustin Bogart was listed as the Trustee of SCR on the recorded deeds. Lastly,
the Bogarts continued to reside at the property after transferring it to SCR.
Alternatively, the Bogarts argue that the federal tax lien could not attach to Marcy
Bogart’s interest in the Pennsylvania property because she shared it with her husband as
tenants by the entireties. There is no debating that the Bogarts initially owned the
Pennsylvania property as tenants by the entireties.6 The Government specifically alleged
in its complaint that the Bogarts acquired title in 1998 “as tenants by the entireties,”
transferring it to SCR in 2004. A deed evidencing the purchase was attached to the
complaint. See also Johnson v. Johnson, 908 A.2d 290, 296 (Pa. Super. 2006) (holding
Pennsylvania law creates a rebuttable presumption that property held by a husband and
wife is held in tenancy by the entireties). At the summary judgment stage, the District
Court was to determine whether Dustin Bogart, as the delinquent taxpayer, had an
interest in the Pennsylvania property to which a valid tax lien could attach. See 26
U.S.C. §§ 7403(a), (c); United States v. Craft, 535 U.S. 274, 278 (2002) (noting courts
“look initially to state law to determine what rights the taxpayer has in the property the
Government seeks to reach, then to federal law to determine whether the taxpayer’s statedelineated rights qualify as ‘property’ or ‘rights to property’ within the compass of the
federal tax lien legislation”) (emphasis added) (citation omitted).

6

In contrast, it was unclear how the Tennessee property was initially acquired.
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We reject the Government’s argument that the tenancy by the entirety was
destroyed when the Bogarts conveyed the property to SCR in 2004. It is clear under
Pennsylvania law that a joint conveyance of property can sever a tenancy by the entirety.
See Clingerman v. Sadowski, 519 A.2d 378, 381 (Pa. 1986). Here, however, the District
Court determined that the conveyance was a sham, and that the Bogarts used SCR “to
conceal their equitable ownership” of the Pennsylvania property. R&R at 7; see also Pitti
v. Pocono Bus. Furniture, Inc., 859 A.2d 523, 526 (Pa. Commw. Ct. 2004) (holding that
“a court may find a transaction to be a sham and unenforceable even though it complies
with relevant legal requirements”). Although SCR is listed as the title-owner of the
property, the District Court found it was a “Bogart-controlled entity” which “exist[s] only
on paper”—“the Bogarts signed and initialed the purchase contract for the property on
behalf of [SCR] as its Executive Trustees; and the funds used to purchase the property
came from the Bogart[s’] bank accounts held in Pennsylvania.” R&R at 10-11, 13. The
effect of the District Court’s determination that SCR was merely the Bogarts’ nominee is
that the property reverted back to the status quo prior to the transfers, that is, as property
held by the Bogarts in tenancy by the entireties. See Appeal of Bd. of Sch. Dirs. of Owen
J. Roberts Sch. Dist., 457 A.2d 1264, 1267-68 (Pa. 1983) (holding that owner who
conveyed bare or “naked [legal] title” to property remained the real owner); Knoll v.
Uku, 154 A.3d 329, 333 (Pa. Super. Ct. 2017) (holding that under Pennsylvania law, a
fraudulent conveyance is “set aside,” thereby invalidating the transfer); see also In re
Krause, 637 F.3d 1160, 1165 (10th Cir. 2011) (a “nominee” of a debtor is one who “holds
bare or apparent title to a particular asset that actually belongs to the debtor”); G.M.
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Leasing Corp., 429 U.S. at 351 (noting that corporation’s being an alter ego has “no
countervailing effect for purposes of [taxpayer’s] federal income tax. . . . It would then
follow that the [United States] could properly regard [the alter ego’s] assets as
[taxpayer’s] property subject to the lien”) (citations omitted).
“[A]lthough the definition of underlying property interests is left to state law, the
consequences that attach to those interests is a matter left to federal law.” Rodgers, 461
U.S. at 683; see also Craft, 535 U.S. at 278. The Supreme Court has recognized that a
federal tax lien may attach to tenancy by the entireties property to satisfy the tax
obligation of one tenant. Id. at 283. In Craft, the Court analyzed Michigan law, finding
that it conferred “some of the most essential property rights” on each tenant, and thus the
debtor tenant had “rights to property” under the federal tax lien statute. Id. We have
recognized that, despite the legal fiction that tenants by the entireties in Pennsylvania do
not enjoy independent legal interests in the property, the state confers “essential property
rights,” similar to those conferred by Michigan, to which a federal tax lien may attach.
See Popky v. United States, 419 F.3d 242, 244 (3d Cir. 2005). The Government’s tax
lien, therefore, could attach to Dustin Bogart’s interest in the Pennsylvania property.
Accordingly, the District Court properly granted summary judgment.
Order of Sale
In light of this judgment, the District Court could order a forced sale of the
property. Rodgers, 461 U.S. at 693-94 (“[W]e must read the statute [§ 7403] to
contemplate, not merely the sale of the delinquent taxpayer's own interest, but the sale of
the entire property (as long as the United States has any ‘claim or interest’ in it)[.]”). The
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Bogarts argue that the District Court should have exercised its discretion not to order the
sale. See 26 U.S.C. § 7403(c) (once a claim of interest has been established, a district
court “may decree a sale of the property”) (emphasis added); see also Rodgers, 461 U.S.
at 708-09 (reviewing an order of sale for abuse of discretion). However, this discretion is
limited and “should be exercised rigorously and sparingly, keeping in mind the
Government's paramount interest in prompt and certain collection of delinquent taxes.”
Id. at 711. We find no abuse of discretion in the authorization of sale.
Courts must consider several factors where a § 7403 sale would cause undue
hardship to an innocent third party: (1) “the extent to which the Government's financial
interests would be prejudiced if it were relegated to a forced sale of the partial interest
actually liable for the delinquent taxes;” (2) “whether the third party with a non-liable
separate interest in the property would, in the normal course of events (leaving aside §
7403 and eminent domain proceedings, of course), have a legally recognized expectation
that separate property would not be subject to forced sale by the delinquent taxpayer or
his or her creditors;” (3) “the likely prejudice to the third party, both in personal
dislocation costs and in ... practical undercompensation;” and (4) “the relative character
and value of the non-liable and liable interests held in the property.” Id. at 710-11.
We note initially that, to the extent the District Court’s determination that SCR
was also Marcy Bogart’s nominee implies that she was not an “innocent” third party, the
exercise of equitable discretion may not have been warranted. Regardless, though, an
application of the Rodgers factors leads to the same result. First, there is no evidence that
Bogart had any other assets the Government could attach to satisfy the tax debt, and his
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partial interest has no significant independent value; the Government, therefore, had a
strong interest in a forced sale of the property. See United States v. Winsper, 680 F.3d
482, 489-90 (6th Cir. 2012). Although the second factor would weigh against foreclosure
“under normal circumstances,” it is neutralized by the District Court’s finding that Marcy
Bogart participated in the transfer of the property in an attempt to frustrate the
Government’s efforts to collect Bogart’s taxes. United States v. Barr, 617 F.3d 370, 376
(6th Cir. 2010); accord United States v. Bierbrauer, 936 F.2d 373, 376 (8th Cir. 1991).
The third factor weighs against foreclosure because, as the property sale bore out, it was
likely that Marcy Bogart’s interest in the property would be undercompensated. See
Rodgers, 461 U.S. at 704 (“in practical terms financial compensation may not always be
a completely adequate substitute for a roof over one’s head”). Finally, Marcy Bogart’s
interest was no greater than her husband’s. See Popky, 419 F.3d at 245 (“Valuing the
interests of tenants by the entireties equally accords with the longstanding Pennsylvania
common law definition of tenancies by the entirety.”). On balance, therefore, the factors
did not warrant the exercise of the District Court’s equitable discretion to decline to
decree the sale.
Distribution of Proceeds
Finally, the Bogarts argue that Marcy Bogart’s tenancy interest entitles her to a
share of the sales proceeds. In its motion for distribution of sales proceeds, the
Government proposed that it receive all proceeds from the sale, less expenses, in
satisfaction of the tax lien. Pursuant to the order of sale, once the Government filed a
report of sale and a proposed distribution of proceeds, the Bogarts had 20 days within
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which to object. Nevertheless, the District Court adopted the Government’s proposal and
ordered the distribution of funds in an order entered December 2, 2015, 14 days after the
motion for distribution of sales proceeds was filed. The next day, the Bogarts filed a
document in which they argued, inter alia, that due process requires that Marcy Bogart be
compensated for her interest in the property through a portion of the sales proceeds. See
District Court Docket, Doc. #133 at 10-11 (citing Rodgers, 461 U.S. at 697 (“if § 7403
allowed for the gratuitous confiscation of one person's property interests in order to
satisfy another person's tax indebtedness, such a provision might pose significant
difficulties under the Due Process Clause of the Fifth Amendment”). The District Court
never ruled on the document. Subsequently, the Bogarts filed two post-judgment
motions, including a motion to vacate the order distributing proceeds in which they made
the same argument under Rodgers. In denying the motion, the District Court rejected the
argument as “frivolous” and as having been “previously addressed.” Because we find
this argument to be neither frivolous nor previously decided, and the District Court failed
to consider the Bogarts’ timely objections to the motion for distribution of sales proceeds,
we will vacate the District Court’s order denying the post-judgment motion to the extent
that it sought to vacate the order authorizing the distribution of sales proceeds.7
When a foreclosure sale takes place pursuant to a tax lien, the proceeds are to be
distributed “according to the findings of the court in respect to the interests of the parties
and of the United States,” thus providing fair compensation both to the Government and

7

We will affirm the order denying the post-judgment motions in all other respects.
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to any third parties. § 7403(c); Rodgers, 461 U.S. at 693-94 (holding that § 7403
contemplates “the recognition of third-party interests through the mechanism of judicial
valuation and distribution”). The issue whether Marcy Bogart maintained a compensable
interest in the property as a tenant by the entireties was not addressed in the R&R or by
the District Court. The Government argues that she has waived her right to assert an
interest in the property. It maintains, in part, that she is bound by her answer to the
complaint in which she denied an interest in the property; according to the Government,
the answer constitutes a “judicial admission” which cannot be controverted. While we
are doubtful that this response to the complaint amounts to a judicial admission8, we
leave it to the District Court to determine in the first instance whether Marcy Bogart had
waived her right to assert an interest in the proceeds.9 On remand, the Court should also
consider whether its determination that Marcy Bogart is a nominee of SCR affects her
right to a distribution of the proceeds. See id. at 698 (“We therefore see no contradiction,
at least at the level of basic principle, between the enforcement powers granted to the
Government under § 7403 and the recognition of vested property interests granted to

8

A judicial admission is an assertion of fact that is binding on a party. See Glick v.
White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972) (“The scope of judicial admissions
is restricted to matters of fact which otherwise would require evidentiary proof, and does
not include counsel's statement of his conception of the legal theory of a case.”); cf.
Rodgers, 461 U.S. at 683 (holding that whether a party has an interest in a property is a
legal question, determined by state law). We note, too, that Dustin Bogart likewise
denied an interest in the property in the answer to the complaint.
We decline to address the Bogarts’ argument on appeal that Dustin Bogart’s mother,
June Bogart, had an interest in the Pennsylvania property and was entitled to proceeds
from the sale, preferring that the District Court address it in the first instance on remand.
9

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innocent third parties under state law.”) (emphasis added); but see Barr, 617 F.3d at 37276 (holding that wife was entitled to proceeds from sale of property held in tenancy by
the entireties despite evidence that she “assisted in shifting properties” and “bore some
responsibility for the fact that the Government could only collect taxes from [her debtor
husband] by foreclosure”); see also Bierbrauer, 936 F.2d at 376. Finally, if necessary, the
District Court should determine whether the entire sales proceeds (less expenses) may be
remitted to the Government in satisfaction of the tax lien. See Rogers, 461 U.S. at 691
(“the Government may not ultimately collect, as satisfaction for the indebtedness owed to
it, more than the value of the property interests that are actually liable for that debt”); see
also Popky 419 F.3d at 245 (valuing the interests of the tax-debtor and non-debtor
spouses equally as tenants by the entireties under Pennsylvania law).
III.
In light of the foregoing, we will affirm the order of the District Court granting
summary judgment and the order of sale. We will affirm in part and vacate in part the
order denying the post-judgment motions, and will remand for further proceedings
consistent with this opinion.10

The Bogarts’ “criminal complaint” and motion to vacate judgment and sale are denied.
See Sewak v. INS, 900 F.2d 667, 673 (3d Cir. 1990) (“As an appellate court we do not
take testimony, hear evidence or determine disputed facts in the first instance. Instead,
we rely upon a record developed in those fora that do take evidence and find facts.”).
The motion to recuse is denied as it fails to allege an objective basis for disqualification
or personal bias. See 28 U.S.C. § 455; see also Liteky v. United States, 510 U.S. 540,
555 (1994) (recusal not warranted merely because of repeated judicial rulings against the
movant).
10

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