Law Office of John H.Eggertsen v. CIR

Filing

OPINION and JUDGMENT filed : The judgment of the tax court is AFFIRMED. Decision for publication. Eric L. Clay (DISSENTING IN PART) and Jeffrey S. Sutton (AUTHORING), Circuit Judges; Michael H. Watson, U.S. District Judge for the Southern District of Ohio, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0222p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LAW OFFICE OF JOHN H. EGGERTSEN P.C.,
Petitioner-Appellant, │
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v.
│

No. 14-2591

>

COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

│
│
│
┘

Appeal from the United States Tax Court.
No. 15479-11—Carolyn P. Chiechi, Judge.
Argued: August 7, 2015
Decided and Filed: September 8, 2015
Before: CLAY and SUTTON, Circuit Judges; WATSON, District Judge.*
_________________
COUNSEL
ARGUED: Stephen F. Wasinger, STEPHEN F. WASINGER PLC, Royal Oak, Michigan, for
Appellant. Francesca Ugolini, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Stephen F. Wasinger, STEPHEN F. WASINGER PLC, Royal
Oak, Michigan, for Appellant. Francesca Ugolini, Bethany B. Hauser, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
SUTTON, J., delivered the opinion of the court in which WATSON, D.J., joined, and
CLAY, J., joined in part. CLAY, J. (pp. 12–14), delivered a separate opinion dissenting in part.

*

The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting
by designation.

1

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_________________
OPINION
_________________
SUTTON, Circuit Judge. In the late 1990s, a law firm organized itself as a corporation
and set up an employee stock ownership plan—what tax lawyers call an ESOP—to obtain
favorable treatment under the Tax Code. In 2001, Congress amended the provisions, trying to
squelch this tax strategy and giving affected taxpayers a grace period to come into compliance
with the new rules. The law firm did not come into full compliance with the new amendments
within the grace period. The IRS Commissioner took his time too. He waited until 2011 to try
to collect the excise tax (over $200,000) that resulted from the firm’s delayed compliance. At
issue in this appeal are two questions: Do the 2001 amendments prohibit this tax strategy? Did
the IRS wait too long to assess the tax? We hold that the law firm must pay the tax and affirm
the Tax Court’s decision to that effect.
I.
In 1998, John H. Eggertsen bought all of the outstanding shares of “J & R’s Little
Harvest, Inc.” and made several changes to the corporation. App. 46. The corporation filed an
election to be treated as an S corporation for federal tax purposes. It changed its name to the
less-quaint “Law Office of John H. Eggertsen, P.C.” Id. at 336. It established an ESOP, a type
of retirement plan that primarily owns securities of the sponsoring employer. And Eggertsen
transferred his ownership shares in the company to the ESOP and into an account allocated to
himself. All of this meant that the law firm’s ESOP became the sole owner of the shares of the S
corporation Law Office.
Two features of the Tax Code explain the method to these changes. The first is that S
corporations are not taxed at the corporate level; they pass their income through to shareholders
who pay any tax due on that income. 26 U.S.C. § 1366. Once Eggertsen owned the Law
Office’s stock, any income earned by the Law Office would pass through to him and he would
pay tax on it as individual income. The second is that, in the mid-1990s, Congress made it
possible for ESOPs to own shares in S corporations and exempted S corporation ESOPs from

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taxes at the plan level. 26 U.S.C. §§ 501(a), 512(e)(3), 1361(b)(1)(B), 1361(c)(6)(B). ESOP
participants, such as Eggertsen, are not taxed on income attributable to stock held in the ESOP
until that stock is distributed to the participant, say, at retirement. Id. §§ 402, 409(a), 501(a); see
generally Employee Benefits Law §§ 5.I, 6.I (Jeffrey Lewis et al. eds., 3d ed. 2012). After these
changes, the Law Office thus would not pay tax on its income but would pass it through to its
owner, the ESOP; the ESOP would not owe tax at the plan level; and Eggertsen, who ultimately
owned the shares, would not owe tax on the income generated in the ESOP until the stock was
distributed at retirement.
This arrangement sheltered considerable income from taxation. That of course does not
make it wrong. No one has “a patriotic duty to increase [his] taxes,” and “[a]ny one may so
arrange his affairs that his taxes shall be as low as possible.” Helvering v. Gregory, 69 F.2d 809,
810 (2d Cir. 1934) (Hand, L., J.), aff’d, 293 U.S. 465 (1935). Just as individuals have no duty to
pay more taxes than the law requires, however, Congress has no duty to preserve such shelters
into perpetuity. Before long, legislators realized that “the income of an S corporation allocable
to an ESOP” was totally exempt from “current taxation.” H.R. Rep. No. 107-84, at 274 (Conf.
Rep.) (2001). That was especially grating given that the benefit often flowed to employees who
were the least likely to need it. Many ESOPs, including Eggertsen’s, did not have “broad-based
employee coverage and [did not] benefit rank-and-file employees as well as highly compensated
employees and historical owners.” Id. Congress responded in 2001. It imposed a 50% excise
tax on S corporation ESOPs that violated new rules requiring broad-based employee ownership.
26 U.S.C. § 4979A. By Treasury regulation, this rule came into effect on January 1, 2005, for
the Law Office’s ESOP. Temp. Treas. Reg. § 1.409(p)-1T(i)(1)(ii) (2005). The new legislation
also provided that, if an ESOP did not meet the new requirements, the plan would face other stiff
penalties, including loss of its ESOP status. 26 U.S.C. §§ 409(p)(2), 4975(e)(7). By Treasury
regulation, this rule also came into effect on January 1, 2005, but the Law Office’s ESOP had an
additional six months (until June 30, 2005) to comply with respect to the pre-2005 allocation
made to Eggertsen. Temp. Treas. Reg. § 1.409(p)-1T(i)(2)(iii)(A).

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In response, the Law Office amended the ESOP in an attempt to mirror the new limits.
And on June 30, 2005, the Law Office moved the stock allocated to Eggertsen to a non-ESOP
account. See Temp. Treas. Reg. § 1.409(p)-1T(b)(2)(v) (permitting this change).
In 2006, the Law Office and the ESOP each filed 2005 tax returns. The Law Office’s
return noted that the ESOP owned 100% of the Law Office’s stock. The ESOP’s return, as
amended, disclosed that the ESOP held $868,833 in assets, of which $401,500 was employer
securities (the Law Office’s stock). The Law Office believed it had complied with the new rules
and so did not file a Form 5330, the return for the new excise tax.
In 2008, the IRS audited the Law Office to determine whether it owed the excise tax for
2005. The Law Office denied any such obligation over the next three years. In 2011, however,
the Commissioner issued a deficiency notice, alleging that before the June 30, 2005, change, the
ESOP was not in compliance with the excise tax rules and $200,750 of excise tax was due (50%
of the $401,500 of Law Office stock held in the ESOP).
The Law Office challenged the deficiency in the Tax Court, disclaiming any tax due and
claiming that the three-year statute of limitations barred the assessment. The Tax Court upheld
the imposition of the tax but sided with the Law Office because the limitations clock had
expired. The Commissioner moved for reconsideration. The court changed its mind. It held that
the limitations period remained open and that the Law Office owed the excise tax.
II.
The Law Office raises three alternative arguments on appeal: (1) It does not owe any
excise tax for 2005; (2) the three-year statute of limitations bars the assessment; and (3) the Tax
Court should not have entertained the Commissioner’s motion for reconsideration.
A.
Does the S corporation owe an excise tax? Section 4979A(a) imposes an S corporation
ESOP-related excise tax in three settings: First, “[i]f . . . there is any allocation of employer
securities which violates the provisions of section 409(p),” 26 U.S.C. § 4979A(a)(3); second,
“[i]f . . . there is . . . a nonallocation year described in subsection (e)(2)(C) with respect to an

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[ESOP],” id. (emphasis added); and third, “[i]f . . . any synthetic equity is owned by a
disqualified person in any nonallocation year,” id. § 4979A(a)(4). If any of these circumstances
apply, “there is hereby imposed a tax on such allocation or ownership equal to 50 percent of the
amount involved.” Id. § 4979A(a). All agree that the first and third tax-triggering events do not
apply here.

No prohibited “allocation of employer securities” occurred in 2005, and no

ownership of “synthetic equity”—primarily stock options, warrants, and the like, see id.
§ 409(p)(6)(C)—occurred in 2005. At issue is the second trigger italicized above and two
questions prompted by it: Was 2005 a nonallocation year described in subsection (e)(2)(C) with
respect to the Law Office’s ESOP? And, if so, does that alone trigger the excise tax?
The Law Office and the IRS agree that 2005 was a nonallocation year. So do we.
That leaves the question whether this reality triggers the excise tax. It does. That is what
the statute says. “If . . . there is . . . a nonallocation year described in subsection (e)(2)(C) with
respect to an [ESOP],” to repeat, “there is hereby imposed a tax on such allocation or ownership
equal to 50 percent of the amount involved.”

Id. § 4979A(a).

The words “such” and

“ownership” in “such allocation or ownership” tell us what we need to know. The only way
there can be a “nonallocation year” is if there is “ownership”: The definition of a “nonallocation
year” requires that a specified set of persons “own at least 50 percent” of the relevant S
corporation shares. Id. § 409(p)(3)(A)(ii). That is just what happened here—when Eggertsen
failed to spread ownership of the S corporation among enough individuals.
The calculation of the excise tax reinforces the link between “nonallocation year” and
“ownership.” The provision cross-referenced in the second trigger—subsection (e)(2)(C)—says
that, during the first nonallocation year, the “amount involved” is set “by taking into account the
total value of all the deemed-owned shares” of a defined set of persons. Id. § 4979A(e)(2)(C).
To the extent the phrase “deemed-owned” does not explain the connection to ownership by itself,
the Tax Code clarifies the point: “[A]n individual shall be treated as owning deemed-owned
shares of the individual.” Id. § 409(p)(3)(B)(ii). Thus, not only is “nonallocation year” itself
defined in terms of ownership, but the method for calculating the amount involved in the first
nonallocation year also refers to what is “owned.” A “nonallocation year described in (e)(2)(C)”
is “such . . . ownership” that triggers the tax.

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Imposing the tax in the first nonallocation year also is consistent with the problem
Congress was trying to solve. Unless taxpayers with narrow ownership were forced to spread
that ownership more broadly or to pay additional taxes instead, nothing would have changed.
The Conference Report echoes the point:

“A special rule applies in the case of the first

nonallocation year, regardless of whether there is a prohibited allocation. In that year, the excise
tax also applies to the fair market value of the deemed-owned shares of any disqualified person
held by the ESOP, even though those shares are not allocated to the disqualified person in that
year.” H.R. Rep. No. 107-84, at 276 (emphasis added). All sources considered, the excise tax
applies and the Law Office owes the IRS $200,750 as a result.
Attempting to fend off this conclusion, the Law Office contends that the tax applies only
if there is an “allocation” of stock or “ownership” of synthetic equity during the tax year. The
key failing in this argument is that it reads out of the section one of the taxable events described
in it: a “nonallocation year described in subsection (e)(2)(C).” It is a “cardinal principle of
interpretation that courts must give effect, if possible, to every clause and word of a statute.”
Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014). The Law Office offers no coherent role
for this provision to play under its interpretation. Because this taxable event, like the other two,
is separated by an “or,” it creates its own requirements and its own taxable event. All three
triggers appear in a subsection entitled “[i]mposition of the tax,” and all three should be given
content. That is all we—and the Tax Court—have done here.
B.
Did the statute of limitations run before the Commissioner assessed the excise tax? The
“[g]eneral rule” under § 6501 is that the Commissioner has three years to assess a tax “after the
return [is] filed.” 26 U.S.C. § 6501(a). “[T]he return” is not any return but “the return required
to be filed by the taxpayer.” Id. If a taxpayer does not file this return, the Commissioner may
assess the relevant tax “at any time.” Id. § 6501(c)(3). In the words of Justice Jackson, once the
general counsel of the IRS (then the BIR—Bureau of Internal Revenue), the rule rests on a
pragmatic consideration associated with “the system of self-assessment which is so largely the
basis of our American system of . . . taxation. The purpose is not alone to get tax information in
some form but also to get it with such uniformity, completeness, and arrangement that the

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physical task of handling and verifying returns may be readily accomplished.” Comm’r v. LaneWells Co., 321 U.S. 219, 223 (1944). Here, the Tax Court noted—and the Law Office does not
dispute—that “Form 5330 is the form that the Commissioner of Internal Revenue has prescribed
as the form in which, inter alia, the excise tax under section 4979A is required to be reported.”
App. 377–78. Form 5330 is “the return” that starts the limitations clock, and the Law Office did
not file it for 2005.
There are several exceptions to § 6501’s general rule, we must acknowledge, and three of
them deserve mention. First, the limitations clock may start in some settings even when the
taxpayer fails to file the right return—say the taxpayer filed the same return for another reason,
see Lane-Wells, 321 U.S. at 222–23, or filed the wrong return but with all of the necessary
information, see Germantown Trust Co. v. Comm’r, 309 U.S. 304, 308 (1940). A key predicate
for this exception is that the return filed must contain “sufficient data to calculate tax liability.”
Beard v. Comm’r, 82 T.C. 766, 777 (1984), aff’d, 793 F.2d 139 (6th Cir. 1986) (per curiam);
accord In re Hindenlang, 164 F.3d 1029, 1032–34 (6th Cir. 1999); see also Bufferd v. Comm’r,
506 U.S. 523, 528 (1993); Auto. Club of Mich. v. Comm’r, 353 U.S. 180, 188 (1957); LaneWells, 321 U.S. at 223; Germantown, 309 U.S. at 308.
In this instance, however, the filed returns would not allow the Commissioner to calculate
the Law Office’s excise tax liability. To calculate that liability under § 4979A(a) due to the
occurrence of a nonallocation year in 2005, the Commissioner would need to know three things:
(1) the ESOP owned Law Office stock at some point during 2005; (2) the percentage of the Law
Office’s stock allocated to each ESOP participant during 2005; and (3) the value of the Law
Office’s stock during 2005. The Law Office and the ESOP’s returns disclosed the first thing (the
ESOP owned 100% of the Law Office’s stock) and the third thing (the value of the Law Office’s
stock held by the ESOP was $401,500). But they did not disclose the second thing—necessary
to determine how much of the Law Office’s stock was subject to the excise tax. Under the
relevant provisions, the amount subject to the excise tax due to a nonallocation year ranges from
50% to 100% of the total value of the shares of the relevant S corporation. See 26 U.S.C.
§ 409(p)(3). Without the second piece of information, the Commissioner could not calculate—
and most taxpayers would not want the Commissioner to calculate—the key point in that range.

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Second, the statute of limitations sometimes starts based on a more generous notice
standard, which looks not to whether “the return” has been filed but whether a filed form
“provides [a] clue” as to an omission. Colony, Inc. v. Comm’r, 357 U.S. 28, 36 (1958); see also
Quick’s Trust v. Comm’r, 54 T.C. 1336, 1346–47 (1970). But this notice standard concerns only
§ 6501(e), a provision with no role to play here. The question is not whether the Law Office
made an omission on a filed return; it is whether it filed the right return at all.
Third, for the excise tax in § 4979A and other excise taxes, the limitations clock may
begin with “the filing of a return . . . on which an entry has been made with respect to” the
applicable excise tax. 26 U.S.C. § 6501(b)(4). The Law Office says this rule applies because it
made a host of entries on its other returns “with respect to” the § 4979A tax, including
everything from the name of the ESOP to facts that would alert the Commissioner to the
nonoccurrence of a prohibited allocation in 2005. But if these entries are “with respect to” the
excise tax at all, they are only with respect to the Law Office’s incorrect interpretation that the
tax applies just to prohibited allocations and ownership of synthetic equity, which impose
taxation under the first and third triggers. Because the Law Office made no entry that would
alert the Commissioner to the occurrence of a nonallocation year—the second trigger and the
trigger that applies to the Law Office—this exception does not apply.
This argument at any rate fails on its own terms. The text of the exception provides that
“the filing of a return . . . on which an entry has been made with respect to [an applicable excise]
tax . . . shall constitute the filing of a return of all amounts of such tax which, if properly paid,
would be required to be reported on such return.” Id. To “constitute the filing of a return” for an
excise tax—to trigger the exception and start the limitations clock—it must be a return on which
amounts of the tax “would be required to be reported.” Id.; cf. Internal Revenue Serv., Internal
Revenue Manual § 25.6.1.9.4.3 (Apr. 1, 2007) (“[U]nder IRC Section 6501(b)(4), the filing of an
excise tax return on which an entry is made for a particular tax constitutes the filing of a return
of all amounts of that tax which, if properly paid, would be required to be reported on that
return . . . .” (emphasis added)). As to the Law Office and the § 4979A tax, the form on which
the excise tax was “required to be reported” was Form 5330. No such form was filed, and no
return means no exception.

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We appreciate the taxpayer’s lament that it seems strange to let the limitations period run
until it files the requisite form, which in this instance merely would have reported “no excise tax
due.” But this takes us back to Justice Jackson’s observation about the imperatives of a system
of tax collection that turns on self-reporting and to a prior observation of this court that Congress
may always change the system. “[T]he door is open,” we said in similar circumstances, “for the
government to go back, without limit in time, and make assessments against citizens who
honestly believed they had made all the returns and paid all the taxes that the law
required. . . . The absence of any limitation, under the situation before us, may indeed visit unfair
burdens and expense upon innocent taxpayers. If so, Congress can provide the needed remedy.”
McDonald v. United States, 315 F.2d 796, 801 (6th Cir. 1963).
C.
Did the Tax Court abuse its discretion in entertaining the Tax Commissioner’s
reconsideration motion? The Law Office claims that the Tax Court never should have
entertained the Commissioner’s argument on reconsideration. To recap: The Commissioner
initially argued that the general statute of limitations in § 6501 did not apply; the only applicable
limitations period, he claimed, was the one in the § 4979A excise tax provision. The Tax Court
agreed with the Commissioner, but held that, under that theory, the limitations period had run.
The Commissioner then realized its mistake, and asked for reconsideration because the Tax
Court had made a “substantial error of law.” R. 22 at 1. The relevant statute of limitations was
§ 6501, the Commissioner explained, subject to a possible extension by § 4979A. The Tax Court
granted reconsideration, conceded it (and the Tax Commissioner) had erred, agreed with the
Commissioner’s new position, and concluded that the limitations period had not run.
The Law Office criticizes the Commissioner’s shifting positions as nothing more than “a
classic case of sand-bagging.” Appellant’s Br. 39. We don’t think so. Keep in mind that the
Tax Commissioner did not benefit from its initial error, making it difficult to look at its mistaken
initial foray as a strategic ploy, as opposed to a case of misapprehension. Labels to the side, the
key question is whether the Tax Court abused its discretion in granting the reconsideration
motion. See Louisville & Nashville R.R. v. Comm’r, 641 F.2d 435, 443–44 (6th Cir. 1981).

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In our view, the Tax Court did not abuse its discretion by using reconsideration to correct
its mistake. We know of no case—and the Law Office points to none—where a lower court,
acting within the bounds of the applicable procedural rules, granted reconsideration to correct an
acknowledged mistake and a federal court held on appeal that doing so was incorrect. That is not
surprising.

This circuit and the Tax Court have both held that errors of law warrant

reconsideration. Schlaud v. Snyder, 785 F.3d 1119, 1124 (6th Cir. 2015) (per curiam); Knudsen
v. Comm’r, 131 T.C. 185, 185 (2008). Committing an error of law indeed is itself an abuse of
discretion. Koon v. United States, 518 U.S. 81, 100 (1996). The Law Office’s response—that
reconsideration was inappropriate because the Commissioner had forfeited its later (correct)
argument as to the applicable statute of limitations—is beside the point. The Tax Court granted
reconsideration to fix its mistake, not the Commissioner’s. As a general matter, courts have a
more vested interest in correcting mistakes of law than litigants do. Because the need to correct
its mistake necessarily corrected the Commissioner’s mistake, the Tax Court did not abuse its
discretion in excusing the usual rule that “an argument raised for the first time in a motion for
reconsideration . . . generally will be forfeited.”

United States v. Huntington Nat’l Bank,

574 F.3d 329, 331–32 (6th Cir. 2009) (emphasis added).
The Law Office also invokes judicial estoppel to argue that the Tax Court was wrong to
address the Commissioner’s new argument. That doctrine “generally prevents a party from
prevailing in one phase of a case on an argument and then relying on a contradictory argument to
prevail in another phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The Law Office
invokes the doctrine because the Commissioner convinced the Tax Court to accept its first
(incorrect) legal argument and then, when that argument did not lead to the desired result, turned
around and pressed a new, contradictory argument.
Judicial estoppel does not apply. Courts typically “resist application of judicial estoppel
when a party’s prior position was based on inadvertence or mistake.”

Id. at 753.

The

Commissioner acknowledged it made a mistake, and there is nothing in the record to suggest
there was anything more to it than that. That mistake made it into the Tax Court’s initial opinion
and we will not “imping[e] on the truth-seeking function of the court” by preventing the Tax
Court from correcting what both parties and the Tax Court all now agree was a legal error.

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Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, LLP, 546 F.3d 752, 757 (6th Cir. 2008).
Judicial estoppel also does not usually apply to shifting legal arguments; it typically applies to
shifting factual arguments. 18B Charles Alan Wright et al., Federal Practice and Procedure
§ 4477 (2d ed. 2015); see also Eubanks v. CBSK Fin. Grp., Inc., 385 F.3d 894, 897 (6th Cir.
2004) (“The doctrine of judicial estoppel bars a party from asserting a position that is contrary to
one the party has asserted under oath in a prior proceeding.” (emphasis added)). Here, the Law
Office’s call for judicial estoppel revolves around the Commissioner’s shift in legal position—
what statute of limitations applies to the § 4979A excise tax. Last of all, there is a high bar to
estopping the federal government from enforcing the correct interpretation of a law because
doing so “undermine[s]” “the interest of the citizenry as a whole in obedience to the rule of law.”
United States v. Williams, 612 F.3d 500, 511 (6th Cir. 2010) (quoting Heckler v. Cmty. Health
Servs. of Crawford Cty., Inc., 467 U.S. 51, 60 (1984)). The Commissioner is a federal officer
and all citizens, even Eggertsen, suffer in the long run when we estop the government from
correcting a legal mistake.
For these reasons, we affirm.

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_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting in part. I respectfully dissent from the majority’s
conclusion that the Tax Court properly allowed the Commissioner of the I.R.S. to benefit from
his complete reversal of position on the governing statute of limitations for excise taxes imposed
under 26 U.S.C. § 4979A. In the merits briefing before the Tax Court, the Commissioner made
the deliberate decision to argue that § 4979A(e)(2)(D) provided the relevant statute of
limitations. We know that the Commissioner directly considered the possibility that § 6501
might apply, but determined that it did not, because the Commissioner explicitly argued that
“I.R.C. § 6501(a) is not the governing period of limitations under the facts of this case.” (A.R.
373.) The Tax Court accepted the Commissioner’s position that § 4979A(e)(2)(D) applied but
determined that under that standard the deficiency action was time barred. Only upon losing
before the Tax Court did the Commissioner determine that his earlier argument was in error.
Without proffering any justification for his change in position beyond asserting that his earlier
position was incorrect, the Commissioner sought reconsideration on the basis that the Tax Court
had committed the substantial error of accepting his own argument that § 4979A(e)(2)(D)
applied. Then, in direct contravention of his earlier position, the Commissioner argued that
§ 6501 provided the governing statute of limitations, not § 4979A(e)(2)(D). The Tax Court
again agreed with the Commissioner, and, applying § 6501, held that the Law Office was bound
to pay the excise tax after all.
The majority finds no cause for concern in the Tax Court’s acceptance of this stark
reversal because of our conclusion that the second, contradictory position taken by the
Commissioner and the Tax Court is the correct one—§ 6501 provides the governing standard.
Taking reassurance from this result, however, overlooks a troubling reality. Namely, if the
Commissioner had prevailed under his first theory, the error may well have gone uncorrected.
When the Internal Revenue Service is permitted to litigate according to its whims in the Tax
Court, knowing that a do-over will be available if it does not succeed on the theory that at first

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seems most expedient, tax law jurisprudence suffers no less than the integrity of the rule of law
and the courts.
Contrary to the majority, I believe the circumstances of this case may well warrant an
application of judicial estoppel, a doctrine that “preserves the integrity of the courts by
preventing a party from abusing the judicial process through cynical gamesmanship, achieving
success on one position, then arguing the opposite to suit an exigency of the moment.” Teledyne
Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990).
The majority argues that judicial estoppel is inappropriate because the doctrine is not
typically applied to inconsistent legal arguments, but rather to inconsistent factual positions. The
case law does not so clearly delineate between the two, and in fact judicial estoppel has been
applied in numerous instances where a party reversed itself on an issue of law. See, e.g., Karaha
Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 294 (5th
Cir. 2004) (holding that judicial estoppel could be applied to prevent a party from reversing its
position on the governing law); see also Whaley v. Belleque, 520 F.3d 997, 1002 (9th Cir. 2008)
(holding that judicial estoppel “applies to a party’s legal as well as factual assertions”); Helfand
v. Gerson, 105 F.3d 530, 535 (9th Cir. 1997) (same); Murray v. Silberstein, 882 F.2d 61, 66-67
(3d Cir. 1989) (estopping a party from seeking damages when the same party had earlier
obtained a preliminary injunction by arguing that the Eleventh Amendment barred any damages
remedy).
The majority also finds that judicial estoppel should not apply based on the
Commissioner’s mere representation that his first argument was a “mistake.” We should be
reluctant to so credulously rely on the Commissioner’s representations.

No reasonable

explanation has been offered for how the Commissioner came to advocate an erroneous position
(or to later conclude that the first position was erroneous), and we know from the
Commissioner’s own briefing before the Tax Court that he initially considered and rejected the
possibility that § 6501 applied. Although it is true that “‘[t]he Government may not be estopped
on the same terms as any other litigant,’” United States v. Williams, 612 F.3d 500, 511 (quoting
Heckler v. Cmty. Health Servs., 67 U.S. 51, 60 (1984)), this Court has not held the government to
be immune from judicial estoppel, see id.; Reynolds v. C.I.R., 861 F.2d 469, 472-73 (6th Cir.

Case: 14-2591
No. 14-2591

Document: 26-2

Filed: 09/08/2015

Law Office of John H. Eggertsen v. Commissioner

Page: 14
Page 14

1988) (applying judicial estoppel against the Commissioner of Internal Revenue); Bunting v.
R.R. Ret. Bd., No. 92-3879, 7 F.3d 232, 1993 WL 372735 (6th Cir. 1993) (table) (applying
judicial estoppel against the government). Instead, we have acknowledged that the government
may be judicially estopped, among other circumstances, where affirmative misconduct has
occurred. Michigan v. City of Allen Park, 954 F.2d 1201, 1217 (6th Cir. 1992); United States v.
River Coal Co., 758 F.2d 1103, 1108 (6th Cir. 1984).
I would remand to the Tax Court to develop a record about the circumstances
surrounding the Commissioner’s reversal in position, including any communications between the
parties and the court, to determine whether the Commissioner’s reversal was made in good faith.
In view of the majority’s holding that judicial estoppel cannot apply in this case, I respectfully
dissent.