NINTH CIRCUIT BANKRUPTCY PANEL AFFIRMS DISMISSAL OF SUIT TO ENJOIN TAX LIEN ENFORCEMENT.

Pro se debtors, Michael and Leone Carey, appeal the bankruptcy court's order dismissing their adversary proceeding in which they sought to enjoin the United States from executing on federal tax liens against them.³ In dismissing the debtors' adversary proceeding, the bankruptcy court determined that, under the Anti-Injunction Act, 26 U.S.C. § 7421(a), it lacked subject matter jurisdiction to hear the matter. We AFFIRM.

On December 15, 2004, the United States filed a complaint against the debtors seeking to deny the debtors' discharge under § 727(a)(2), (4) and (5)⁶ for failing to disclose certain real properties on their schedules⁷ and to except from discharge the debtors' federal income tax liabilities for 1995 through 2000 under § 523(a)(1)(A) and (C) ("nondischargeability action") (adv. proc. no. 09-2548).⁸ The United States also sought a determination that the entry of discharge in the bankruptcy case would not affect its federal tax liens against any property the debtors acquired prepetition.

The United States moved for summary judgment on the § 523(a) claims for relief only ("partial summary judgment motion").⁹ After a hearing, the bankruptcy court granted the United States's partial summary judgment motion, ruling that the debtors' federal income tax liabilities for 1995 through 2000 were excepted from discharge.

With respect to the § 523(a)(1)(C) claim for relief, the bankruptcy court determined that "[t]he undisputed evidence before [it was] overwhelming that the [debtors] filed fraudulent returns for the years 1995 through 2000." Memorandum Decision, 12:28, 13:1-2. It also determined that the debtors willfully tried to evade their federal income tax liabilities. The bankruptcy court found that the debtors underreported their income, failed to keep adequate records of their income and expenses, and established sham trusts to hide their income and to avoid personal tax liability, among other acts. Such conduct, the bankruptcy court concluded, demonstrated the debtors' intent to file fraudulent federal income tax returns and to evade their federal income tax liabilities for the years 1995 through 2000.

With respect to the § 523(a)(1)(A) claim for relief, the bankruptcy court determined that, even without a showing of fraud, the debtors' federal income tax liabilities for 1997 and 2000 were excepted from discharge, as the taxes for those years constituted priority claims under § 507(a)(8). The bankruptcy court also determined that, regardless of discharge, all of the debtors' federal income tax liabilities, except those for the 1997 tax year, would remain secured by the federal tax liens against the debtors' assets.

On April 27, 2005, the bankruptcy court entered its memorandum decision and order granting the United States's partial summary judgment motion. Three months later, the bankruptcy court entered judgment in favor of the United States on the § 523(a) claims for relief ("§ 523(a) judgment").¹⁰ The debtors appealed the § 523(a) judgment to the Bankruptcy Appellate Panel ("BAP")(BAP case no. EC-05-1217), which dismissed the debtors' appeal for failure to prosecute. The § 523(a) judgment is final.

Shortly before entry of the § 523(a) judgment, the United States moved to dismiss with prejudice the § 727(a) claims for relief ("§ 727(a) dismissal motion"). The United States asserted that it did not wish to continue litigation of the remaining claims for relief as it already had obtained a ruling excepting from discharge nearly all of the debtors' federal income tax liabilities. Over the debtors' opposition, the bankruptcy court granted the United States's § 727(a) dismissal motion and entered an order thereon ("§ 727(a) dismissal order").

On October 27, 2005, the United States filed a complaint against the debtors in the United States District Court seeking judgment against the debtors for the unpaid federal income taxes ("district court action").¹¹ The United States also sought to execute on its federal tax liens against the debtors by selling the California real properties.

The United States moved for summary judgment against the debtors in the district court action. The district court granted the United States's summary judgment motion on the following grounds: (1) the tax court and the bankruptcy court already adjudicated the debtors' federal income tax liabilities, and (2) the debtors failed to present any evidence showing that the United States's federal tax assessments were incorrect or invalid and that the debtors did not owe approximately $6.5 million in federal income tax liabilities.

On July 5, 2007, the district court entered an order ("district court order") providing that, as of February 28, 2007, the debtors owed approximately $7.5 million in federal income tax liabilities for 1995 through 2000. The district court order further provided that the United States could enforce its federal tax liens against the debtors by selling the California real properties. The district court order also authorized the United States Marshal to take any actions necessary to remove any occupants from the California real properties if they failed to vacate the California real properties within the prescribed time. The district court entered judgment consistent with its order ("district court judgment").

The debtors appealed the district court order and judgment. The Ninth Circuit affirmed the district court, determining that it properly granted summary judgment in the United States's favor because the debtors failed to controvert the federal tax assessments. The Ninth Circuit further concluded that the bankruptcy court found that the debtors' federal income tax liabilities were excepted from discharge due to their filing fraudulent tax returns and willful tax evasion. The district court judgment is final.

The chapter 7 trustee filed a no asset report, indicating that there were no funds available from the estate for distribution to creditors. The debtors received their discharge on August 9, 2005. The United States's adversary proceeding closed on February 6, 2006. The debtors' bankruptcy case closed on February 15, 2006.

Two months after their bankruptcy case was reopened on the debtors' motion on July 30, 2009, the debtors filed a complaint and a motion for a temporary restraining order ("TRO motion") against the United States seeking to enjoin the United States from executing on the district court judgment. The debtors contended that the United States could not execute on the federal tax liens because they did not owe any federal income taxes and, even if they did owe federal income taxes, the debtors received a discharge which released them from their federal income tax liabilities.

The United States moved to dismiss the debtors' adversary proceeding under Fed. R. Civ. P. 12(b)(1) and (b)(6) ("United States's motion to dismiss"). The United States argued that the debtors' adversary proceeding should be dismissed because the bankruptcy court lacked subject matter jurisdiction to hear it under the Anti-Injunction Act, 26 U.S.C. § 7421(a). The Anti-Injunction Act prohibits parties from filing suit seeking to restrain the collection of any tax. In seeking to prevent the United States from foreclosing its federal tax liens, the United States argued, the debtors' complaint and TRO motion ran afoul of the Anti-Injunction Act. The bankruptcy court thus had no authority to hear the adversary proceeding.

The United States further contended that res judicata¹² barred the debtors from seeking an injunction against the United States because the district court already had entered judgment allowing the United States to foreclose its federal tax liens.

Moreover, the United States asserted that, contrary to the debtors' contentions, the discharge in their bankruptcy case did not relieve them of their federal income tax liabilities, since the bankruptcy court determined in the § 523(a) judgment that the debtors' federal income tax liabilities for 1995 through 2000 were excepted from discharge. The § 523(a) judgment became final once the BAP dismissed the debtors' appeal, and the debtors made no further appeal.

The debtors opposed the United States's motion to dismiss, contending that the bankruptcy court had authority to determine their request for injunctive relief, as the district court order and judgment were void and went against the bankruptcy court's own orders (i.e., the § 727(a) dismissal order and discharge). The debtors claimed that the district court order was a collateral attack on the § 727(a) dismissal order and discharge. According to the debtors, the § 727(a) dismissal order eliminated the debtors' federal income tax liabilities. Once it dismissed the denial of discharge claims for relief with prejudice, the debtors argued the United States could not proceed with the district court action; the § 727(a) dismissal order and discharge were claim preclusive as to the issue of the debtors' federal income tax liabilities. Thus, they argued that the district court order contravened the § 727(a) dismissal order and discharge, and accordingly, it was void. The debtors therefore sought injunctive relief from the bankruptcy court as only it had authority to enforce its own orders.

The debtors also claimed that the district court order was void because the United States did not have federal tax liens against the debtors. The debtors asserted that the United States did not have any federal tax liens against them because the chapter 7 trustee disallowed the United States's proofs of claim, as evidenced by the claims register which listed the claims as $0.

At the hearing on January 5, 2010, the bankruptcy court granted the United States's motion to dismiss under Fed. R. Civ. P. 12(b)(1) based on the Anti-Injunction Act. The bankruptcy court declined to rule on the other grounds offered by the United States in its motion to dismiss, however, as the bankruptcy court determined that it lacked subject matter jurisdiction.

At the January 5, 2010 hearing, the bankruptcy court noted that the debtors misapprehended the scope of the discharge after it entered the § 523(a) judgment. The bankruptcy court stated that "there [was] a very basic misunderstanding on the part of the [debtors] about the effect of the bankruptcy case. They seem to think that the tax debts were discharged because a discharge was entered in the case." Tr. of January 5, 2010 hr'g, 6:12-15. The bankruptcy court went on to explain that, contrary to the debtors' belief, "the discharge [in the bankruptcy case did] not discharge particular debts that have been determined by the court to be nondischargeable, which [was] what occurred here." Tr. of January 5, 2010 hr'g, 6:22-24.

The bankruptcy court entered its order dismissing the debtors' adversary proceeding ("Rule 12(b)(1) order") on January 13, 2010.¹³ The debtors timely appealed.

On appeal, the debtors advance the same arguments they made in their opposition to the United States's motion to dismiss. The bankruptcy court did not find the debtors' arguments persuasive. Neither do we. In fact, we find them frivolous. Based on our reading of the Anti-Injunction Act, 26 U.S.C. § 7421(a), we agree with the United States that it prevents the bankruptcy court from entertaining the debtors' request for injunctive relief.

The Anti-Injunction Act provides that, with certain exceptions,

The Anti-Injunction Act is "strictly enforced." Maxfield v. United States Postal Serv., 752 F.2d 433, 434 (9th Cir. 1984). If the action does not fall within any of the exceptions to the Anti-Injunction Act, the bankruptcy court must dismiss the action for lack of subject matter jurisdiction. Elias v. Connett, 908 F.2d 521, 523 (9th Cir. 1990). Even if the taxpayer satisfies one of the exceptions under the Anti-Injunction Act, he or she still must allege sufficient grounds to warrant equitable relief. Id.

The debtors do not deny that they sought to enjoin the United States from executing on the district court judgment and collecting taxes. Even if they attempted to do so, their complaint and TRO motion clearly set forth the debtors' objective to stop the IRS's tax collection efforts. Therefore, the debtors' adversary proceeding must fall within one of the statutory or judicially-created exceptions to application of the Anti-Injunction Act in order for the bankruptcy court to hear it.

As the United States points out, none of the statutory exceptions apply. See, e.g., 26 U.S.C. § 6015(e)(relief from joint and several liability on joint return); § 6212(a) and (c)(notice of deficiency); § 6672(b)(enjoining premature actions for violations of § 6224(a)).

Nor does the debtors' request for injunctive relief fall within either of the two judicially-created exceptions when an action is allowed: (1) where the taxpayer lacks alternative means to contest the legality of a particular tax, South Carolina v. Regan, 465 U.S. 367, 370-72 (1984), or (2) if it is clear that under no circumstances could the Government ultimately prevail, and the taxpayer will suffer irreparable injury without injunctive relief, Elias, 908 F.2d at 525 (citation omitted). The taxpayer bears the burden to plead and prove facts demonstrating that the United States cannot prevail. Id. The United States only needs to have "a good faith basis for its claim in order to obtain a dismissal." Id. (citation omitted).

With respect to the first judicial exception, the debtors litigated the validity of the federal tax liens before the district court and the tax court. Both the district court and the tax court found that the debtors were liable for federal income taxes. Their determinations are final.

With respect to the second judicial exception, the debtors have not shown that the United States could not prevail. In fact, the United States prevailed on appeal as to the debtors' federal income tax liabilities; the Ninth Circuit affirmed the district court judgment, determining that the debtors failed to controvert the federal income tax assessments, after the bankruptcy court already had entered a judgment excepting the debtors' tax liabilities from discharge.

However, the debtors focus their arguments on why the Anti-Injunction Act should not apply. The debtors first argue that the United States submitted to the bankruptcy court's jurisdiction by filing proofs of claim. We agree with the United States that the debtors' argument confuses the United States's limited possible waiver of sovereign immunity with the withdrawal of jurisdiction under the Anti-Injunction Act. See § 106(b)(providing that a governmental unit that filed a proof of claim is deemed to have waived sovereign immunity with respect to a claim against the governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the governmental unit's claim arose). The Anti-Injunction Act limits the authority of the bankruptcy court. See 26 U.S.C. § 7421. Simply because the United States participated in the debtors' bankruptcy case does not mean that the bankruptcy court can ignore the provisions of the Anti-Injunction Act. See Am. Bicycle Ass'n v. United States (In re Am. Bicycle Ass'n), 895 F.2d 1277, 1280 (9th Cir. 1990)("We hold that [the] proscription [of the Anti-Injunction Act] is not overridden by the general grant of authority provided in section 105(a) of the Bankruptcy Code.").

The debtors next contend that claim preclusion barred the district court from entering the district court judgment against them. They argue that the district court judgment was a collateral attack on the § 727(a) dismissal order and discharge. The debtors claim that the United States was precluded from raising the issue of their federal income tax liabilities in the district court action, as the issue had been resolved through dismissal of the nondischargeability action and their discharge in the bankruptcy case. Because the bankruptcy court already adjudicated the issue of the debtors' federal income tax liabilities, the debtors argue, the district court order was void. The debtors then reason that only the bankruptcy court had the authority to enforce the § 727(a) dismissal order and discharge against the void district court order.

As the bankruptcy court pointed out at the January 5, 2010 hearing, the debtors misapprehend the effect of the discharge on their federal income tax liabilities after the bankruptcy court entered the § 523(a) judgment. The debtors also appear to misapprehend the scope of the § 727(a) dismissal order.

Generally, a discharge in a chapter 7 bankruptcy case discharges the debtor from all debts that arose before the date of the order for relief, save for those debts that are excepted from discharge by § 523. 11 U.S.C. § 727(b). See also Watson v. Shandell (In re Watson), 192 B.R. 739, 748 (9th Cir. BAP 1996), aff'd, 116 F.3d 488 (9th Cir. 1997). Section 524 only enjoins creditors from trying to collect from the debtor debts that have been discharged. Watson, 192 B.R. at 748. Here, as evidenced by the § 523(a) judgment, the bankruptcy court determined that the debtors' federal income tax liabilities for 1995 through 2000 were excepted from discharge (i.e., not discharged) under § 523(a)(1)(A) and (C). As noted above, the § 523(a) judgment is final.

The debtors apparently believe that the § 727(a) dismissal order somehow dismissed not only the § 727(a) claims for relief, but also the § 523(a) claims. That is not the case. The § 727(a) dismissal order specifically states that "counts one [ § 727(a)(2)], two [ § 727(a)(4)], and three [ § 727(a)(5)] of the complaint are dismissed with prejudice" and that "a separate judgment will be entered concerning the fourth, fifth and sixth causes of action [concerning § 523(a)(1)(C) and (A) and the tax liens] of the complaint." Plainly reading the language of the § 727(a) dismissal order, only the § 727(a) claims for relief were dismissed. The bankruptcy court already ruled and issued an order on the § 523(a) claims for relief. It issued the § 523(a) judgment at a later date.

B. Claim Preclusion and Law of the Case

Alternatively, even if jurisdiction was not precluded by the Anti-Injunction Act, based on the proofs of claim filed by the United States, claim preclusion and/or law of the case barred the debtors' adversary proceeding. Although the bankruptcy court did not rule on these grounds, we may affirm on any basis supported by the record. Corrie, 503 F.3d at 979. Here, the record is replete with facts sufficient to support our conclusions.

Claim preclusion "provides that a final judgment on the merits of an action precludes the parties from relitigating all issues connected with the action that were or could have been raised in that action." Rein v. Providian Fin. Corp., 270 F.3d 895, 898-99 (9th Cir. 2001). To apply claim preclusion, four elements must be present: (1) the parties were identical in the litigation; (2) the prior judgment was rendered by a court of competent jurisdiction; (3) there was a final judgment on the merits; and (4) the same claim was involved in both suits. Id. at 899.

If it had determined it had jurisdiction, the bankruptcy court could have applied claim preclusion to support dismissal of the debtors' adversary proceeding. The debtors and the United States both clearly have been involved from the start in all the litigation regarding the debtors' federal income tax liabilities. In their complaint and TRO motion, the debtors alleged that the United States did not have any federal tax liens because the debtors did not owe any federal income taxes and, even if the debtors did owe federal income taxes, they were discharged in the debtors' bankruptcy. This issue already has been litigated to a final judgment before the bankruptcy court in the nondischargeability action, where it found that the debtors had federal income tax liabilities that were excepted from discharge. The bankruptcy court entered judgment in the United States's favor, which became final once the appeal to the BAP was dismissed. (Notably, the Ninth Circuit also determined in the appeal of the district court judgment that the bankruptcy court correctly found that the debtors' federal income tax liabilities were excepted from discharge.)

As the United States points out, claim preclusion also can be applied in light of the district court action where it determined that the debtors owed federal income taxes for 1995 through 2000. The district court entered final judgment in favor of the United States, which was appealed to the Ninth Circuit. The Ninth Circuit affirmed the district court, noting that the debtors did not controvert the federal income tax assessments.

Various courts have determined that the debtors owed federal income taxes for 1995 through 2000, which were not discharged in bankruptcy. These facts bar the debtors from seeking injunctive relief against the United States, as the issues already have been litigated and determined through the entry of final judgments in at least two courts.¹⁴

Additionally, the law of the case doctrine precluded the debtors from proceeding with their complaint and TRO motion. Under the law of the case doctrine, a court is barred from reconsidering an issue that the same court or a higher court already decided in the same case. Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990). For the law of the case doctrine to apply, the court must have expressly or by necessary implication decided the issue. Id. However, even if the law of the case doctrine applies, the court may decide, in its discretion, to revisit the issue if: "(1) the first decision was clearly erroneous and would result in manifest injustice; (2) an intervening change in the law has occurred; or (3) the evidence on remand [is] substantially different." Id.

The bankruptcy court could not reconsider the issue of the debtors' federal income tax liabilities because it already expressly determined in the nondischargeability action that they were excepted from discharge. The district court also explicitly decided that the debtors owed federal income taxes for the years 1995 through 2000. The Ninth Circuit affirmed the district court and determined that the bankruptcy court had been correct in excepting the debtors' federal income tax liabilities from discharge. The issue of the debtors' federal income tax liabilities went through three courts, all of which determined that the debtors had federal income tax liabilities. And, as we noted earlier, all those decisions are final.

² Hon. Dennis Montali, Bankruptcy Judge for the Northern District of California, sitting by designation.

³ Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, as enacted and promulgated prior to October 17, 2005, the effective date of most of the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. 109-8, 119 Stat. 23.

⁴ As of November 18, 2004, the debtors owed approximately $6.5 million for unpaid federal income taxes, plus penalties and interest.

⁵ The tax court issued its rulings in two published decisions, Residential Management Servs. Trust v. Comm'r, 82 T.C.M. (CCH) 874 (2001); and Carey v. Comm'r, 86 T.C.M. (CCH) 420 (2003).

⁶ Section 727(a) lists specific grounds for the denial of a debtor's discharge. Among those grounds, the bankruptcy court shall deny a debtor's discharge if it is shown that:

⁸ Under § 523(a)(1), certain tax debts are excepted from discharge, including taxes:

⁹ The debtors also moved for summary judgment, which the bankruptcy court treated as a response to the United States's motion for partial summary judgment. The bankruptcy court determined that the debtors' summary judgment motion did not address the elements for summary judgment in their favor. The bankruptcy court accordingly denied the debtors' summary judgment motion, entering its order on April 27, 2005.

¹⁰ The bankruptcy court initially declined to enter judgment on the United States's partial summary judgment motion because it had not made any determinations as to the § 727(a) claims for relief. Later, in its motion to dismiss the § 727(a) claims for relief, the United States renewed its request that the bankruptcy court enter judgment in favor of the United States as to the § 523(a) claims for relief it asserted in its complaint, and that request was granted.

¹¹ Before proceeding with the district court action, the United States obtained from the bankruptcy court an order granting relief from stay. See Order Granting Motion for Relief from Stay, main case docket no. 22.

¹² Although the parties to this appeal argue about the "res judicata" effects of the § 523(a) judgment and the district court order and judgment, the Supreme Court now generally uses the term "claim preclusion" instead of "res judicata." Taylor v. Sturgell, 553 US. 880, 895 (2008). See Paine v. Griffin (In re Paine), 283 B.R. 33, 38 (9th Cir. BAP 2002). Hereafter, we use the term "claim preclusion" in lieu of "res judicata."

¹³ Shortly after entry of the Rule 12(b)(1) order, the debtors filed a motion to reconsider and a motion to vacate the Rule 12(b)(1) order, both of which the bankruptcy court denied on April 27, 2010.

¹⁴ Three, if the tax court decisions are considered.