USA v. Gordon Niamatali


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USA v. Gordon Niamatali Doc. 0 Case: 09-40837 Document: 00511185698 Page: 1 Date Filed: 07/26/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED July 26, 2010 N o . 09-40837 S u m m a r y Calendar Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, Department of Justice, P la in t iff - Appellee v. G O R D O N RAMZAN NIAMATALI, D e fe n d a n t - Appellant A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 7:07-cv-108 B e fo r e WIENER, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* T h e United States filed suit against Gordon Niamatali to recover unpaid t a x e s . After a bench trial, Niamatali was ordered to pay substantial sums. On a p p e a l, he challenges the precise calculation of his income tax liability, penalties, a n d additions. We AFFIRM the judgment except as to one of the penalties. We V A C A T E the judgment for a recalculation of a specific penalty in light of the G o v e r n m e n t 's admission of error regarding it. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 09-40837 Document: 00511185698 Page: 2 Date Filed: 07/26/2010 No. 09-40837 I n 2000 and 2001, Niamatali was a practicing anesthesiologist working as a n independent contractor and also as an employee in McAllen, Texas. After N ia m a ta li failed to file federal income tax returns in both years, the Internal R e v e n u e Service prepared substitute tax returns on his behalf. Over the ensuing years, the IRS issued a statutory notice of deficiency and s e n t Niamatali several notices related to the deficiency and its intent to levy. In 2 0 0 4 , the IRS issued a Form 4340 for each tax year, assessing the liabilities, a d d it io n s , and interests. The IRS also recorded a notice of federal tax lien with t h e county clerk in Hidalgo County, Texas. Subsequently, Niamatali filed tax r e t u r n s for the tax years of 2000 and 2001. He reported no tax liability, a t t a c h in g a brief to the 2000 tax return explaining his position. Through a levy, t h e IRS obtained a portion of the balance due from Niamatali. O n May 8, 2007, the United States brought suit in federal district court s e e k in g to reduce to judgment the federal income tax assessments against N ia m a ta li and to foreclose the federal tax liens against two parcels of his p rop erty . During a two-day bench trial, Niamatali advanced several tax p r o t e s t o r arguments and also challenged the calculation of taxes, penalties, and a d d it io n s imposed. Both Niamatali and the Government offered witnesses t e s t ify in g to the amount Niamatali owed the Government. The court ruled for the Government. It entered a judgment establishing N ia m a ta li's tax liabilities, penalties, and additions, and authorizing the G o v e r n m e n t to foreclose on the federal tax liens against his property. P r o c e e d in g pro se on appeal, Niamatali argues that the district court erred in ordering statutory penalties and in accepting the Government's assessment a n d accounting of payments due instead of his accounting. O n appeal after a bench trial, we review findings of fact for clear error and le g a l conclusions de novo. Villafranca v. United States, 587 F.3d 257, 260 (5th C ir . 2009). "A factual finding is not clearly erroneous as long as it is plausible 2 Case: 09-40837 Document: 00511185698 Page: 3 Date Filed: 07/26/2010 No. 09-40837 in the light of the record read as a whole." Id. (citation and quotation marks o m itte d ). T a x assessments by the IRS are presumed correct; the taxpayer bears the b u r d e n of overcoming that presumption by a preponderance of the evidence. United States v. Lochamy, 724 F.2d 494, 497-98 (5th Cir. 1984). The G o v e r n m e n t supported its assessments for 2000 and 2001 with Forms 4340. "IRS Form 4340 constitutes valid evidence of a taxpayer's assessed liabilities and t h e IRS's notice thereof." Perez v. United States, 312 F.3d 191, 195 (5th Cir. 2 0 0 2 ) (citation omitted). The Government also offered a transcript of in fo r m a t io n reported to the IRS by third parties. At trial, an IRS compliance o ffic e r and an IRS reports analyst testified. Niamatali testified on his own b e h a lf and introduced as a witness the tax consultant who prepared his tax retu rn s. Upon review of the testimony, we conclude it was not clearly erroneous for t h e court to reject Niamatali's calculations. Niamatali's conclusional assertions d o not overcome the presumption of correctness to which the IRS's assessments a r e entitled. Moreover, we are not convinced by Niamatali's contention that the Form 4 3 4 0 was insufficient because the Government did not produce a Form 23C a s s e s s m e n t certificate. The Form 4340 provided Niamatali with the information r e q u ir e d . See Treas. Reg. 301.6203-1. O n appeal, the Government concedes error in its assessing the failure-top a y penalty under I.R.C. 6651(a)(2). We AFFIRM the judgment in all respects except for the assessment of the S e c tio n 6651(a)(2) penalty as to each tax year. As to that penalty, we VACATE a n d REMAND to the district court for further proceedings. 3

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