October 23, 2017

Tenth Circuit: Challenge to Tax Penalty Should Have Been Raised in Initial Appeal

The Tenth Circuit Court of Appeals issued its opinion in Keller Tank Services II, Inc. v. Commissioner of Internal Revenue on Tuesday, February 21, 2017.

In this appeal from a ruling of the Tax Court, the Tenth Circuit Court of Appeals had to determine if a taxpayer may challenge a tax penalty in a Collection Due Process (CDP) hearing after previously challenging the penalty to the Appeals Office of the Internal Revenue Service. Keller Tank Services II, Inc. participated in an employee benefit plan called the Sterling Benefit Plan, but did not report its participation in the Plan on its tax return. Keller also deducted from its tax return deductions for its contribution into the Plan. The IRS determined a tax penalty for Keller’s failure to report its participation in the Plan, and assessed a deficiency against Keller for improper deductions of payments into the Plan.

Keller protested the penalty at the IRS Appeals Office, and after the Appeals Office affirmed the penalty, Keller tried to then protest the penalty in a CDP Hearing, where he was told he could not do so as he had already challenged the amount to the Appeals Office. Keller then appealed the CDP determination that he was not allowed to appeal the amount in his CDP hearing to the Tax Court, where the Commissioner of the IRS was granted summary. In defending against Keller’s appeal, the Commissioner argued that Keller’s appeal is moot because it was collaterally estopped from challenging its liability. Keller asserted that Treas. Reg. 301.6320-1(e)(3) unreasonably interprets 26 U.S.C § 6330(c)(2)(B) to preclude liability challenges at a CDP hearing when the taxpayer had the opportunity to dispute liability at the Appeals Office.

To begin, the Tenth Circuit addressed the Commissioner’s contention that Keller’s appeal was moot because it is collaterally estopped from challenging liability in light of Keller’ stipulation to be bound by the holding in Our Country Enterprises Inc., et al. v. Commissioner, that held another taxpayer’ participation in the same Plan was a reportable transaction. The court rejected this argument, and stated that the “constitutional mootness doctrine is grounded in the Article III requirement that federal courts may only decide actual ongoing cases or controversies,” while collateral estoppel concerns the actual merits of the case. The court stated that because mootness is a jurisdictional bar, while collateral estoppel is an affirmative defense, one cannot base mootness on collateral estoppel. Additionally, the court said that Keller’s stipulation was limited to its deficiency hearing and did not cover its penalty hearing, which is the only proceeding relevant to this appeal. Finally, as to the Commissioner’s argument, the court ruled that even if Keller’s stipulation were to collaterally estop Keller from challenging that its participation in the Plan was a listed transaction to report, Keller was alleging other issues that the outcome of the appeal would effect, refuting the mootness claim.

Turning to Keller’s challenge of its liability, Keller argues that Treas. Reg. 301.6320-1(e)(3), which interprets ‘a prior opportunity’ under 26 U.S.C § 6330(c)(2)(B) to include a conference with the Appeals Office, is an unreasonable interpretation of the section because it impermissibly limits the jurisdiction of the Tax Court and the federal courts and is “internally inconsistent.” Because this is an administrative interpretation of an ambiguous statute, the agency’s interpretation is given deference if it meets the standard first applied in Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc. The Court reviewed the Tax Court’s application of the two-step Chevron deference test de novo. It its own application of the test, the Court determined that as to the first step, the statute itself is ambiguous as the term “opportunity to dispute” could be interpreted in more than one reasonable way.

Turning then to the second step, the Court had to determine if the Treasury Regulation’s interpretation of 26 U.S.C § 6330(c)(2)(B) was a reasonable one. The court held that it was a reasonable interpretation because nothing in the statute precludes the “opportunity to dispute” from being within the context of an administrative hearing. Furthermore, when the court looked to the broader context of the statute, it stated that 26 U.S.C § 6330(c)(4)(A) bars taxpayers from raising an issue at judicial or administrative form and then again raising the same issue at a subsequent CDP hearing. Therefore, the court reasoned that it was the intent of Congress that an administrative hearing could preclude consideration under 26 U.S.C § 6330(c)(2)(B) as well.

The court also rejected Keller’s claim that the Treasury Regulation impermissibly limits the jurisdiction of the Tax Court and federal courts, and therefore it should not receive Chevron deference. The Tenth Circuit stated that § 6330 establishes the Tax Court’s jurisdiction to review CDP proceedings, and the Regulation limits the scope of what may be heard at the CPD hearing, so while it limits the issues that may be raised at the hearing, it does not limit the issues that may be heard at the Tax Court. Finally, the court rejected Keller’s contention that the Regulation was internally inconsistent, stating that Keller failed to show that the Regulation is arbitrary, capricious, or manifestly contrary to the statute.

The Tenth Circuit Court of Appeals affirmed the Tax Court’s grant of summary judgment.

HB 16-1377: Creating a Task Force on Collection and Security of Digital Images of Child Abuse

On March 16, 2016, Rep. Dianne Primavera and Sen. Kent Lambert introduced HB 16-1377Concerning the Creation of a Task Force on the Collection and Security of Digital Images of Evidence of Child Abuse or Neglect. The bill was assigned to the House Public Health Care & Human Services Committee, where it passed unamended. The bill passed through Second and Third Reading unamended and was introduced in the Senate in the Health & Human Services Committee. It was amended in committee and referred to the Senate Committee of the Whole for Second Reading.

This bill creates a task force to study and make recommendations on the current policies and procedures surrounding the collection and security of digital image evidence of child abuse or neglect.

The task force has three primary purposes:

  1. Study current laws, rules, and practices followed in Colorado – and best practices in other states – regarding the collection and security by county employees of digital evidence of suspected child abuse;
  2. Consider whether the statutes and practices concerning the collection and use of digital evidence of suspected child abuse are consistent with the existing and emerging technologies; and
  3. Recommend the best practices to be used in the collection and security of digital evidence of suspected child abuse.

In carrying out purposes (1) and (2), the task force shall investigate:

  1. The laws, practices, and standards governing how a county employee takes, maintains, and disseminates digital images of the child to document child abuse, considering the importance of balancing the need to collect evidence with the need to protect the privacy and constitutional rights of the parents and child;
  2. The safeguards used by county employees to ensure the best interest of the child when documenting digital evidence of suspected child abuse;
  3. The role of law enforcement agencies in conducting a child abuse assessment or investigation, as well as how law enforcement agencies, county departments, and medical professionals collaborate during assessments or investigations; and
  4. The laws, practices, and standards governing the taking of digital images of children’s bodies, as well as the audio or videotaping of a child interview.

In carrying out purpose (3), the task force shall submit to a number of specified state agencies, departments, and institutions an initial report by December 1, 2017. A final report shall be submitted by December 1, 2018.

The membership of the task force shall consist of the following members:

  1. Executive director of the Department of Human Services, or his or her designee;
  2. Child protection ombudsman;
  3. Attorney representative of the office of the child’s representative;
  4. Attorney representative of the respondent parents’ counsel;
  5. The Governor shall appoint the following members, all of whom should have experience in dealing with child abuse cases: licensed pediatrician, law enforcement officer/investigator from a rural area, law enforcement officer/investigator from an urban area, representative who oversees the child welfare training academy, director/administrator of a county department of social or human services, sexual assault nurse examiner, and a license child psychiatrist or psychologist;
  6. The Speaker of the House of Representatives shall appoint the following members: forensic interviewer of an accredited child advocacy center with experience interviewing abused children, representative of a statewide professional social work organization with experience counseling abused children, certified foster parent, representative of a law and policy child advocacy group or agency, and a caseworker that conducts assessments of child abuse cases; and
  7. The President of the Senate shall appoint the following members: county attorney with experience in dependency or neglect cases, a school representative (such as a principal, administrator, or school nurse), representative of a nationally recognized organization that works to prevent and treat child abuse, court-appointed special advocate for abused children, and a caseworker that conducts assessments of child abuse cases.

Appointments to the task force must occur on or before September 1, 2016. The first meeting of the task force shall occur on or before October 1, 2016.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Momentary Eye Contact Sufficient to Support Bail Bond Violation Charge

The Colorado Court of Appeals issued its opinion in People v. Serra on Thursday, September 28, 2015.

Bail Bond Conditions— Protective Order—Harassment—Evidence—Contact—Character—Prosecutorial Misconduct.

Serra was the elected district attorney for the Seventh Judicial District when he was arrested and charged with unlawful sexual contact and extortion. The victim in this case, who had worked for Serra at the district attorney’s office for several years before his arrest, was also a named victim in the sexual contact case. Serra was released on a bail bond pending trial. A condition of the bond was that he have no contact with the victim. Several months before the date of the preliminary hearing in the unlawful sexual contact case, Serra encountered the victim at a department store. Based on that encounter, he was charged and convicted of violation of his bail bond conditions, violation of a protective order, and harassment.

On appeal, Serra argued that the evidence was insufficient to support his convictions. The evidence that Serra happened upon the victim, stared at her for 10 to 15 seconds, and made a facial expression supported his convictions for violation of bond conditions and violation of a protection order. The evidence was insufficient, however, to support his conviction for harassment because there was no evidence that he followed the victim. Therefore, the harassment conviction was vacated.

Serra argued that the trial court erred in defining the term “contact” for the jury and that it incorrectly defined the term. The term “contact,” as used in CRS §§ 18-8-212 and 18-6-803.5, has a commonly accepted and understood meaning. Thus, a further clarifying definition was not required to inform the jury of the governing law. However, the court’s definition of “contact” did not state the plain and ordinary meaning of the term. In light of the minimal amount of evidence establishing the element of contact, this error was not harmless. Therefore, Serra’s convictions for violation of bond conditions and violation of a protection order were reversed.

Serra also argued that the trial court erred in admitting evidence of the victim’s character for truthfulness. Because defense counsel’s cross-examination of the victim did not amount to an attack on her character for truthfulness, testimony that she was a truthful person was inadmissible. On remand, the trial court should not admit evidence that the victim is truthful unless her character for truthfulness is attacked first.

Serra contended that evidence of his bad character was improperly admitted. The witnesses’ testimony about their experiences with Serra’s smirk constituted “other acts” evidence. It was relevant here because it established that Serra used a smirk to communicate. If the testimony is offered as evidence on retrial, the trial court likewise must evaluate it for admissibility under CRE 404(b).

Finally, Serra contended that some of the statements the prosecutor made in closing were improper. On remand, the prosecutor should only refer to facts admitted in evidence and must not use the words “lie,” “BS,” “deceit,” or similar terms to refer to Serra’s testimony or defense counsel’s argument.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Rational Basis Supported Tendered Lesser Non-Included Offense Instruction

The Colorado Court of Appeals issued its opinion in People v. Naranjo on Thursday, May 7, 2015.

Felony Menacing—Lesser Non-Included Offense—Disorderly Conduct.

Defendant Naranjo was convicted of two counts of felony menacing. The victims, a father and daughter, testified at trial that as the father was merging onto the highway, Naranjo cut them off, pointed a gun at the daughter, and threatened both of them. Naranjo testified that the father was the aggressor, that he inadvertently showed his gun as he was putting it away in the glove box, and that he did not make any threats.

On appeal, Naranjo contended that the trial court reversibly erred in declining to instruct the jury on the lesser non-included offense of disorderly conduct with a deadly weapon. Although Naranjo’s asserted reason for grabbing the gun was, as the trial court put it, “perfectly benign,” a jury could nonetheless conclude that handling a weapon while traveling on a public highway supported a finding that Naranjo consciously disregarded a substantial and unjustifiable risk that the gun would be displayed to someone outside the car. Thus, the record supports a rational basis from which the jury could have convicted Naranjo of disorderly conduct with a deadly weapon and acquitted him of felony menacing. The trial court therefore erred in declining to give the lesser non-included offense instruction to the jury. Because this error was not harmless, the judgment was reversed and the case was remanded for a new trial.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: District Courts Should Order Disclosure of Possibly Exculpatory Material Throughout Post-Conviction Proceedings

The Colorado Supreme Court issued its opinion in In re People v. Owens on Monday, June 30, 2014.

CAR 21 Original Proceeding—Death Penalty—CRS §§ 16-12-201 to -210—Discovery and Disclosure.

Owens and Ray petitioned pursuant to CAR 21 for relief from a series of discovery rulings of the district court relative to post-conviction proceedings in their respective death penalty cases. Each had moved to discover the prosecution’s investigation of the claims raised by Owens’s motion for post-conviction review, on the grounds that such disclosure was required either by Crim.P. 16 or by the federal or state constitution. The district court ruled that Crim.P. 16 did not impose obligations on the prosecution with respect to its preparation to meet defendants’ post-conviction claims, but that the prosecution continued to have obligations to disclose information that was both exculpatory and constitutionally material, without regard for the time of or impetus for its discovery.

The Supreme Court issued a rule to show cause why the district court’s ruling should not be disapproved for too narrowly limiting the prosecution’s discovery obligations during the unitary review proceedings prescribed by statute for all death sentences and convictions resulting in death sentences in this jurisdiction. The Court held that because Crim.P. 16 imposes disclosure obligations on the prosecution only with regard to materials and information acquired before or during trial, the district court did not err in finding it inapplicable to information acquired in response to defendants’ post-conviction claims. However, because the Court previously has held not only that a prosecutor’s constitutional obligation to disclose information favorable to an accused extends through the appeal of a death sentence, but also that district courts should order the disclosure of some possibly exculpatory material, despite being unable to find a reasonable probability that nondisclosure would change the result of the proceeding, the Court remanded the cases with directions for the district court to apply the due process standard and procedure announced in People v. Rodriguez, 786 P.2d 1079 (Colo. 1989).

Summary and full case available here.

Colorado Supreme Court: Fee and Cost Award Mandated by Statute when District Court Orders Inspection of Public Records

The Colorado Supreme Court issued its opinion in Benefield v. Colorado Republican Party on Monday, June 30, 2014.

CRS § 24-72-204(5)—Records—Costs and Fees.

Benefield and other current or former members of the Colorado House of Representatives sought review of the court of appeals’ judgment in Colorado Republican Party v. Benefield (Colo.App. No. 10CA2327, Nov. 10, 2011), which reversed the district court’s order denying costs and attorney fees for the Colorado Republican Party. After assessing the extent to which the Party prevailed overall in its action for inspection of public records, the district court determined that it was not a “prevailing applicant” within the meaning of CRS § 24-72-204(5). The court of appeals reversed, reasoning that a prevailing applicant was “any party who brings a section 24-72-204(5) action against a public records custodian and obtains any improperly withheld public record as a result of such action.”

The Supreme Court affirmed. CRS § 24-72-204(5), when properly construed, mandates an award of costs and reasonable attorney fees in favor of any person who applies for and receives an order from the district court requiring a custodian to permit inspection of a public record, as provided for by the statute.

Summary and full case available here.

SB 12-107: Enacting the “Water Rights Protection Act”

On January 31, 2012, Sen. Morgan Carroll and Rep. Roger Wilson introduced SB 12-107 – Concerning Additional Protections for Water Related to Hydraulic Fracturing. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enacts the “Water Rights Protection Act”, under which the Colorado oil and gas conservation commission must establish rules for:

  • Hydraulic fracturing near radioactive materials and sites listed on the national priority list pursuant to the federal “superfund” law; and
  • The shut-down of hydraulic fracturing operations when monitoring equipment detects a pressure drop.

Oil and gas operators must submit water quantity reports showing projected and actual sources and amounts of water needed for hydraulically fracturing a well. Operators must also submit pre- and post-fracturing water quality reports for all active water wells located within .5 mile of oil and gas wells that will be or have been hydraulically fractured. This information will be posted on the commission’s web site. Operators cannot inject into the ground any chemical compound that would cause cancer.

In addition to existing financial assurances, each operator that engages in a high-risk hydraulic fracturing treatment must take out an environmental bond that would be forfeited if the operator’s operations cause any damage to water rights.

Subject to listed affirmative defenses, an operator is presumed to be responsible for the pollution of a water supply that is within .5 mile of a line between the well head and the surface projection of the bottom hole location of the well, if the pollution occurred within 6 months after the completion of the hydraulic fracturing of the well. Hydraulic fracturing would be prohibited within .5 mile of any surface water, including a pond, reservoir, or other natural or artificial impoundment or stream, ditch, or other artificial waterway, unless the operator uses a closed-loop system. The bill is assigned to the Judiciary Committee; the bill is not listed on the printed calendar.

Summaries of other featured bills can be found here.

Tenth Circuit: Unpublished Opinions, 6/7/11

Philip Gordon: Quon Decision Provides Useful Guidance for Private Employers While Skirting Broad Pronouncements

As anticipated in our blog post describing the oral argument before the U.S. Supreme Court in City of Ontario v. Quon (pdf), the Court declined today to make any broad pronouncements concerning employee privacy rights in electronic communications using employer-issued equipment. The Court reserved expressing an opinion given the newness and evolving nature of cell phone and text message communications. Instead, the Court held that the City of Ontario Police Department did not violate the Fourth Amendment rights of a SWAT team member, Sgt. Jeff Quon, by reviewing text messages sent and received by Quon on a department-issued pager because, even assuming that Quon had a reasonable privacy expectation, the City’s review of his text messages was motivated by a legitimate work-related purpose and was not excessive in scope. Notwithstanding its narrow and fact-specific nature, the Court’s ruling still provides useful guidance for private employers.

Most importantly, the Court emphasized, in the following language, the importance of a well crafted and broadly distributed electronic resources policy when defending against an employee’s claim that an employer tortiously reviewed the employee’s electronic communications:

[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

The Court also highlighted a key distinction between corporate e-mail and text messages sent by cell phone, i.e., such text messages typically are transmitted through the cell phone provider’s server, rather than an employer-owned server. In Quon, this distinction was important because the department’s e-mail policy focused on e-mail sent through the department’s server and did not mention text messages. However, the Court emphasized that the department had informed SWAT team members, when issuing pagers to them, that the e-mail policy would be applied to text messages transmitted through the service provider. Similarly, private employers should ensure that their electronic resources policy is not limited to e-mail or to communications transmitted through the company’s e-mail server.

Although not deciding the issue of Quon’s privacy rights, the Court did give some weight in passing to Quon’s contention that a management-level police official had created an expectation of privacy for Quon by telling him that the official would not audit Quon’s text messages if Quon paid any required overage charges. Private employers should take care through policy language and training to avoid a situation where an employee could allege that a management-level employee countermanded corporate policy aimed at defeating employees’ privacy expectations in their electronic communications.

The Court’s holding — that Quon’s claim failed because the department’s search was legitimate and reasonable — demonstrates that private employers can substantially reduce their potential exposure on privacy-based claims by acting reasonably when searching and reviewing employees’ electronic communications. In Quon, for example, the department initiated its investigation for the legitimate purpose of determining whether the department’s character restrictions on text messages were too low and, therefore, forced SWAT team members to pay overage charges for work-related texts. In addition, the department reviewed only a relevant sampling of Quon’s texts, and the internal investigator who conducted the review redacted all messages sent or received by Quon during non-working hours. The department’s precautions demonstrate that, by conducting an investigation to accomplish a legitimate business purpose and in a manner that is not excessive, private employers can defeat claims based upon a review of an employee’s electronic communications, even if a court were to find that the employee had a reasonable expectation of privacy in those communications.

While private employers can take heart from Quon, they also should take heed of the following statement by the Court:

[The department’s] audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been.”

As employees increasingly access personal e-mail accounts using employer-issued equipment and rely more heavily on personal smart phones to conduct company business, the privacy issues confronted by private employers (and the courts) will become only more complex. Here again, a well crafted and broadly distributed policy that puts employees on notice of how and when the employer will access these communications can go a long way towards strengthening the employer’s hand in litigation. At the same time, employers should beware that, as reflected by a recent decision of the New Jersey Supreme Court, even the most comprehensive electronic resources policy may not always win the day.

Philip L. Gordon blogs at Littler Mendelson’s Workplace Privacy Counsel and this post originally appeared here on June 17, 2010. Click here to read all posts by this author.

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