Mark Liu, et al v. CIR

Filing

UNPUBLISHED OPINION FILED. [16-60583 Affirmed] Judge: CES, Judge: EGJ, Judge: EHJ. Mandate pull date is 06/26/2017 [16-60583]

Case: 16-60583

Document: 00513977679

Page: 1

Date Filed: 05/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60583
Summary Calendar
MARK Y. LIU; GINGER Y. BIAN,

United States Court of Appeals
Fifth Circuit

FILED
May 3, 2017
Lyle W. Cayce
Clerk

Petitioners - Appellants
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee

Appeal from a Decision of the
United States Tax Court
TC No. 16841-14
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM:*
Several months after the U.S. Tax Court entered a decision incorporating
an agreement between Petitioners-Appellants Mark Y. Liu and Ginger Y. Bian
(the “Taxpayers”) and the IRS Commissioner, Taxpayers filed a motion to vacate
the decision, alleging it was procured by fraud. The U.S. Tax Court, finding no

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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evidence of fraud, dismissed the case. Taxpayers timely appealed. Finding no
abuse of discretion, we AFFIRM.
I.

BACKGROUND & PROCEDURAL HISTORY

On July 18, 2014, 1 Taxpayers, filing pro se, challenged a notice of
deficiency they received for their 2011 tax filings. Thereafter, on August 28,
2014, Derek B. Matta, the attorney Taxpayers hired to represent them, filed
an amended petition on Taxpayers’ behalf. Only two days later, Taxpayers
filed, pro se, a “Motion to Close Petition,” stating that they “d[id] not want to
contest the Notice of Deficiency for the taxable year 2011 in this Court and
agree to pay for the increase in tax.”
On

September

15,

2014,

Taxpayers

filed

a

document

styled

“Ra[t]ification of Petition,” wherein they claimed the August 28, 2014 amended
petition “was filed by [their] former counsel . . . without [their] knowledge” and
that they had fired Mr. Matta on August 30, 2014. The letter further stated
that Taxpayers “[would] not contest the Notice of Deficiency in principle for the
taxable year 2011” and that they had “reached a settlement of a [fifty percent]
waiver of the penalties [owed],” referencing a phone conversation Taxpayers
had had with Ashley Vaughn Targac, who represented the Commissioner of
Internal Revenue. On October 2, 2014, the Tax Court entered a stipulated
decision incorporating Taxpayers’ agreement with Ms. Targac, which
Taxpayers had signed on September 24, 2014, and Ms. Targac had signed on

This case has a somewhat unorthodox procedural posture. Taxpayers initially brought the
case before the Tax Court on April 17, 2014. Because Taxpayers had not yet received a notice of
deficiency for 2011, however, the Commissioner filed a motion to dismiss the petition for want of
jurisdiction. Taxpayers filed a response on July 18, 2014, attaching a notice of deficiency for their
2011 tax filings. Because the notice was dated May 5, 2014, eighteen days after Taxpayers first
challenged their tax liability, the Tax Court entered an order directing the Clerk to accept Taxpayers’
response “as an imperfect petition to commence the case at docket No. 16841-14.”
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September 26, 2014.

The decision became final ninety days later, in

accordance with 26 U.S.C. §§ 7481(a)(1) and 7483.
Over eighteen months later, on April 13, 2016, Taxpayers filed a “Motion
to Vacate Decision” with the Tax Court, alleging that they had received “[three]
Notice[s] of Levy for the tax year 2011,” which they alleged “reopened the
case.” 2 In their motion, which the Tax Court restyled as a motion for leave to
file out of time, Taxpayers averred that they had “discovered new evidence of
misconduct[], fraud, abuse, conspiracy[,] and conflicts of interest between
[their] attorney[,] Derek M. Matta[,] and the IRS attorney, Ashley Targac.”
Specifically, Taxpayers alleged that because Ms. Targac and Mr. Matta “were
colleagues for many years at the IRS Houston Office” and that Mr. Matta had
overseen the “whistleblower case” Mr. Liu brought against his former employer
in 2005 and 2006, Ms. Targac and Mr. Matta had colluded to commit fraud on
the Tax Court.

Therefore, because “Mr. Matta [had] betrayed [them] by

working for the opposing party, . . . [they] had no choice but to fire him . . . and
sign[] the settlement agreement with Ms. [] Targac, who threatened to take the
case to trial.” Following a hearing, the Tax Court denied the motion on June
2, 2016. Taxpayers timely appealed.
II.

DISCUSSION

This court reviews the Tax Court’s denial of leave to file a motion to
vacate for abuse of discretion. See Williams v. Commissioner, 145 F.3d 360,
360 (5th Cir. 1998) (citing Westbrook v. Commissioner, 68 F.3d 868, 874 (5th
Cir. 1995)); see also Davenport Recycling Assocs. v. Commissioner, 220 F.3d
1255, 1259 (11th Cir. 2000). Except for a few narrow exceptions, once the Tax

According to Ms. Targac, Taxpayers received these notices because, although they had paid
their penalty, they were “being billed for the interest on the deficiency that accrued from the date that
. . . the payment should have been made until the date of actual payment.”
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Court’s judgment becomes final, the Tax Court lacks jurisdiction to vacate its
decision. Hilal v. Commissioner, 237 F. App’x 932, 933 (5th Cir. 2007) (citing
Davenport Recycling Assocs., 220 F.3d at 1259). “This court . . . may reverse a
discretionary denial by the Tax Court of post-opinion motions only if there are
shown to be ‘extraordinary circumstances’ justifying reversal.” Williams, 145
F.3d at 360 (quoting Wilson v. Commissioner, 500 F.2d 645, 648 (2d Cir. 1974)
(citation omitted)).
On appeal, Taxpayers essentially argue that because of Mr. Matta’s ties
to Ms. Targac and his past involvement with Mr. Liu in a separate case, Mr.
Matta “tricked” Taxpayers into accepting the settlement agreement’s terms,
which they aver constitutes fraud on the court. It is apparent from the record,
however, that Taxpayers have presented no evidence of fraud. The settlement
Taxpayers now challenge is one they, not Mr. Matta, negotiated with Ms.
Targac. Moreover, both Mr. Liu and Ms. Bian signed the agreement several
weeks after they ended Mr. Matta’s employment with them. Accordingly, the
Tax Court did not abuse its discretion in denying Taxpayers leave to file a
motion to vacate the Tax Court’s decision incorporating the settlement
agreement.
III.

CONCLUSION

For the reasons stated above, we AFFIRM the Tax Court’s judgment in full.

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