August 21, 2019

Tenth Circuit: $2.5 Million IRS Judgment Against Single Shareholder Not Barred by Ten-Year Statute of Limitations

The Tenth Circuit Court of Appeals published its opinion in United States v. Holmes on Friday, August 23, 2013.

The United States sued Mr. James Holmes seeking to collect a federal tax debt owed by the now-defunct corporate entity Colorado Gas Compression. Defendant Holmes was the sole shareholder of Colorado Gas prior to the entity’s demise. The district court granted final judgment in favor of the United States in the amount of $2,533,930.94. Holmes appealed that judgment. The United States cross-appealed from the district court’s decision regarding the date from which prejudgment interest would be awarded.

In his appeal, Mr. Holmes raised a single issue: whether the claims of the government were barred by the Colorado statute of limitations. The government argued that its claims were limited only by the ten-year statute of limitations of 26 U.S.C. § 6502(a). This was not the position that the government took in the district court. In the district court, the government argued its claim was not subject to any period of limitations, state or federal. Consequently, the court had to first decide whether to consider the argument raised for the first time on appeal.

The court decided to consider the government’s argument because the alternate argument was consistent with the record. Also, the government was seeking to affirm the district court’s judgment and not reverse it, and the government in this action was the appellee, rather than the appellant.

Mr. Holmes argued that assessments against Colorado Gas did not extend the government’s time to proceed against him personally, but only against his company. The IRS in response contended that these provisions merely provided it with an alternative way to pursue collection against a transferee, rather than prescribing a required method. The court held the government was correct: The collection procedures contained in § 6901 are not exclusive and mandatory, but are cumulative and alternative to the other methods of tax collection recognized and used prior to the enactment of  26 U.S.C. § 6901 and its statutory predecessors. The court held that the district court did not err in granting summary judgment to the government on the issue of Mr. Holmes’s liability as transferee for the taxes of his company.

In its cross-appeal, the government urged that the district court committed error in deciding the date from which prejudgment interest would accrue on the government’s recovery. The Tenth Circuit concluded, however, that this issue was not properly preserved for appeal, and the court accordingly declined to consider it.

AFFIRMED.

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