460 F2d 304 Boschma v. Cardoza

460 F.2d 304

72-1 USTC P 9413

Hessel BOSCHMA and Louise Boschma, Plaintiffs-Appellants,
Thomas CARDOZA, District Director, United States Internal
Revenue Service, et al., Defendants-Appellees.

No. 71-1922.

United States Court of Appeals,
Sixth Circuit.

April 21, 1972.

Larry Davidow, Detroit, Mich. (Davidow & Davidow, Detroit, Mich., on the brief), for appellants.

Jane M. Edmisten, Tax Division, Dept. of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Leonard J. Henzke, Jr., Attys., Tax Division, Dept. of Justice, Washington, D. C., Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on the brief), for appellees.


Before WEICK, PECK and KENT, Circuit Judges.

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After receiving a notice of deficiency in income taxes for the years 1949 through 1957 the taxpayers filed a timely petition for redetermination by the Tax Court. After trial the Tax Court reached a decision finding the existence of deficiencies in each of the taxable years and imposed fraud penalties for each year except 1957. 24 T.C.M. 324. The taxpayers appealed to this Court which affirmed the Tax Court. 374 F. 2d 863 (6 Cir. 1967).


On June 22, 1971 the taxpayers filed a complaint in the United States District Court for the Eastern District of Michigan alleging that the evidence in the original case before the Tax Court constituted fraud upon the Court. Later by amendment the taxpayers asserted that the taxpayer, Louise Boschma, should be relieved from liability under the provisions of Section 6013(e) Internal Revenue Code of 1954, 26 U.S.C. Sec. 6013(e), and sought a temporary injunction to restrain the District Director from pursuing any property in which taxpayer, Louise Boschma, had an interest. On motion District Judge Cornelia Kennedy denied the injunction and dismissed the action on the ground that the case was res judicata and, therefore, not within the provisions of the exception created by Section 7421 Internal Revenue Code of 1954, 26 U.S.C. Sec. 7421.


The taxpayer cannot be permitted to collaterally attack a judgment entered by the Tax Court and affirmed by this Court years before the present action was commenced.


Therefore, it is ordered that the judgment of the District Court be affirmed for the reasons stated by District Judge Cornelia Kennedy.