KENDALL J. NEWMAN, Magistrate Judge.
Presently pending before the court is defendant Donald M. Wanland, Jr.'s ("defendant") motion to dismiss or stay the action, which was originally filed on February 27, 2014. (ECF No. 17.) On March 3, 2014, the action was referred to the undersigned pursuant to Local Rule 302(c)(21). (ECF No. 18.) Because defendant was incarcerated and no hearing on the motion was scheduled, the court issued a minute order on March 4, 2014, requiring plaintiff United States of America ("United States") to file a response to defendant's motion no later than April 3, 2014. (ECF No. 19.) Defendant was permitted to file a reply brief no later than April 17, 2014, whereupon the motion was to be submitted on the papers and without oral argument pursuant to Local Rule 230(g). (
After considering the parties' written briefing, the court's record, and the applicable law, the court recommends that defendant's motion to dismiss or stay the action be denied.
The United States commenced the instant action on November 13, 2013, seeking a determination that, pursuant to 11 U.S.C. § 523(a)(1)(C), assessments for defendant's federal tax liabilities for certain tax years were not discharged in bankruptcy, as well as seeking to reduce such tax assessments to judgment. (
According to the United States, defendant operated a successful law practice and lived an extravagant lifestyle with luxury cars and large expenditures on hotels and resorts, but nonetheless refused to sell his assets to satisfy tax liabilities, failed to honor IRS levies issued to his law firm and another of his partnerships, paid other creditors instead of the United States, used nominee bank accounts in the name of a partnership for personal banking, and concealed nominee accounts from his accountants and the IRS when submitting sworn Collection Information Statements. (Compl. ¶¶ 14-17.) The complaint indicates that defendant was ultimately convicted of 28 criminal counts, "including Attempt to Evade and Defeat the Payment of Tax (1 count), the Removal, Deposit, and Concealment of Property Subject to Levy (24 counts), and Willful Failure to File Income Tax Returns (3 counts).
The operative complaint further states that defendant had filed a petition for relief under Chapter 11 of the Bankruptcy Code on March 27, 2007, and that defendant's bankruptcy case was later converted to a Chapter 7 case on October 16, 2007. (Compl. ¶ 8.) According to the United States, on June 18, 2007, the IRS filed a timely proof of claim in the amount of $1,538,702.47 in the bankruptcy action, which was amended on August 26, 2008, and which included the liabilities at issue in this case. (
After defendant received several extensions to respond to the United States' complaint in this action, defendant ultimately filed the instant motion to dismiss or stay the action.
Defendant's motion to dismiss or stay the action, filed on February 27, 2014, requests the court to stay the action pending the final outcome of defendant's criminal case. However, as noted above, judgment in defendant's criminal case was subsequently entered on March 28, 2014, essentially rendering defendant's request moot.
To the extent that defendant contends that this civil action should be stayed until his appeal of the criminal action to the Ninth Circuit has been resolved, that argument is unpersuasive. As the Ninth Circuit has explained:
In this case, it is unlikely that defendant's fifth amendment rights would be implicated by this civil action, because defendant has already been convicted and sentenced in the criminal action. As the United States points out, the only presumable way that defendant's fifth amendment rights could potentially be implicated would be if he were to successfully appeal his conviction and a new trial was ordered. However, such speculation appears insufficient to warrant a stay here. "[W]here trial in the parallel criminal proceeding has concluded, and a conviction is being challenged on appeal, the analysis shifts against staying the civil proceedings."
Moreover, as the Ninth Circuit has observed, although the extent to which a defendant's fifth amendment rights are implicated is a "significant factor" for the court to consider, "it is only one consideration to be weighed against others."
Therefore, after weighing the above-mentioned factors, the court concludes that defendant would not suffer substantial prejudice if this civil action were permitted to continue, that the interests of justice do not warrant a stay, and that defendant's motion to stay should accordingly be denied.
The court proceeds to analyze the merits of defendant's motion to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6).
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint.
In considering a motion to dismiss for failure to state a claim, the court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff.
In his motion to dismiss, defendant contends that this action is barred by the doctrines of collateral estoppel and res judicata. Defendant essentially reasons that his June 8, 2011 bankruptcy discharge included the tax liabilities at issue in this action, and that the United States is therefore collaterally estopped from raising the issue of whether or not the taxes were dischargeable in this action. That argument lacks merit, because a discharge under 11 U.S.C. § 727 "does not discharge an individual debtor from any debt—for a tax . . . with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax. . . ." 11 U.S.C. § 523(a)(1)(C). Furthermore, although the Ninth Circuit has apparently not squarely addressed the issue, other courts have persuasively held, based on an analysis of the applicable statutes and bankruptcy rules, that the United States is not required to obtain a ruling on the non-dischargeability of a tax debt pursuant to section 523(a)(1)(C) in the underlying bankruptcy case to prevent its discharge:
Here, the operative complaint alleges sufficient facts to permit the court to draw a reasonable inference that defendant willfully attempted to evade or defeat payment of the tax liabilities at issue. Accepting such factual allegations as true for purposes of a motion to dismiss under Rule 12(b)(6), it follows that these taxes would not have been automatically discharged upon issuance of the discharge under 11 U.S.C. § 727. Defendant does not contend that the bankruptcy court actually made any specific findings regarding the dischargeability of these tax liabilities as part of an adversary proceeding in the bankruptcy action. As such, at least based on the present record in the context of defendant's motion to dismiss, the doctrines of collateral estoppel and res judicata do not bar the United States' present action.
Defendant further argues that, even if the action is not barred by principles of collateral estoppel and res judicata, the bankruptcy court has exclusive jurisdiction over this action. According to defendant, the United States should be required to move to reopen the bankruptcy case to pursue the requested relief in that forum. That argument is devoid of merit, because the Ninth Circuit has confirmed that, with respect to dischargeability or non-dischargeability of debts under subsections of section 523(a) other than subsections (a)(2), (a)(4), and (a)(6), "bankruptcy courts have concurrent rather than exclusive jurisdiction to determine whether a debt is excepted from discharge."
Finally, defendant also contends that the action is barred by the doctrine of laches. However, that argument cannot succeed in light of Ninth Circuit precedent holding that "laches is not a defense to the United States' enforcement of tax claims."
For these reasons, the court concludes that defendant's motion to dismiss pursuant to Rule 12(b)(6) should be denied.
Accordingly, in light of the above, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served on all parties and filed with the court within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
IT IS SO RECOMMENDED.
