United States of America v. Pound et al

Filing 99

ORDER by Judge Ronald A. White: denying 94 Plaintiff's Motion for Partial Relief (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF OKLAHOMA U N I T E D STATES OF AMERICA, P la in ti ff , v. J O H N N Y LEE POUND, et al., D e fe n d a n ts . ) ) ) ) ) ) ) ) ) ORDER B e f o re the court is the motion of the motion of the plaintiff for partial relief and to m o d if y order. On February 2, 2010, this court granted the motion of the defendant for relief fro m final judgment. On April 1, 2010, the plaintiff filed its notice of appeal from that order. In the present motion, filed May 12, 2010, plaintiff asks the court to withdraw that portion o f its order which held the IRS abatements of tax assessments against defendant Pound were e f f e c tiv e and irreversible. Further, that the court reinstate the assessments in order to p re se rv e the tax liens, subject to additional presentation of evidence in the district court. T h e motion proceeds in the alternative. First, it relies upon the established procedure th a t "after an appeal has been taken the district court retains jurisdiction to consider and deny a Rule 60(b) motion and, if it indicates that it will grant the motion, the movant may then ask th e court of appeals to remand the case so that the district court may act." Blinder, Robinson & Co. v. SEC, 748 F.2d 1415, 11420 (10 th Cir.1984). This procedure, however, only applies to a "final order," i.e., one that may be addressed by Rule 60(b). Cf. Adams v. City of

C a s e No. CIV-07-427-RAW

C h ic a g o , 135 F.3d 1150, 1153 (7 th Cir.1998). Here, there is uncertainty as to whether the

c o u rt's order was final for appellate purposes. This is an issue upon which only the Tenth C irc u it may definitively pronounce. Accordingly, this court will deny the present motion as to its first ground pending such a ruling. A lte rn a tiv e ly, plaintiff argues that if this court considers its February 2 order to be in ter lo c u to ry, the court may revisit the decision pursuant to Rule 54(b) F.R.Cv.P. Again, this co u rt is persuaded it would be presumptuous to do so. It is inappropriate for a district court to modify an order that the appellate court may determine to be a final order. Plaintiff argues th a t such modification would be of a collateral matter, but this court disagrees. The central is s u e on appeal is whether the plaintiff is bound by the abatement granted by the IRS pending a new assessment, or whether (as plaintiff argues) the abatement was a clerical mistake which c a n be corrected or was of no binding effect in view of 26 U.S.C. §7122(a) and the g o v e rn m e n t's "litigation freeze codes". The relief requested by plaintiff goes to the heart of th a t issue and this court declines to grant it at this time. The court will, however, conclude with some obiter dictum. Plaintiff states that "the p r i m a ry motivation for seeking this partial relief is to preserve the federal tax liens in the m e a n tim e . . . . " (Motion at 2). As far as this court is concerned, plaintiff is under no o b lig a tio n to release the tax liens pending appeal. Defendant has made no such request to this court, and such release could result in severe prejudice to plaintiff if assets were d is s ip a te d . Should the Tenth Circuit agree with plaintiff's position on the merits, the parties s h o u ld as a matter of equity return to the status quo ante. Release of the tax liens might

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re n d e r that impossible. It is the order of the court that the plaintiff's motion for partial relief (#94) is DENIED w ith o u t prejudice. O R D E R E D THIS 8th DAY OF JUNE, 2010.

D a te d this 8 t h Day of June 2010.

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