Smith v. United States

¶4WISDOM, Circuit Judge:

¶5In this case we decide whether the plaintiffs/appellants, Mr. and Mrs. William L. Smith, are entitled to recover attorney’s fees from the Internal Revenue Service. Our decision turns on whether the IRS’s appraisal of a building owned by the Smiths was “not substantially justified”. The district court examined both the Smiths’ position and IRS’s position and concluded that the Smiths had not met their burden for recovering attorney’s fees. Because we find no error in the district court’s approach, we affirm.

¶6I.

¶7The building in question is a single-story concrete structure in Dallas with a white brick veneer. It covers most of a 12,400 square foot lot at the comer of St. Paul and Cadiz Streets in downtown Dallas. The original owner used it to process and store film. As a result, the building has unusual air-conditioning capacity and a specialized electrical system. The building also contains “vaults” that were once used to store explosive chemicals.

¶8The Smiths bought the land and the building in 1981 for $280,000. After spending $76,000 to remodel the building, the Smiths are now able to use it as a law office. Although the neighborhood surrounding the building was marginal in 1981, the Smiths’ property is only a short *244walk from the city’s prime business district and the state and federal courthouses. By all accounts the Smiths are pleased with both the building and its location.

¶9In their original tax return for 1981, the Smiths gave the building a pre-renovation basis of $285,512. The land itself, in the Smiths’ view, was a $5,512 liability. The IRS audited the Smiths’ return for 1981. After a preliminary examination, Revenue Agent Nancy Anderson rejected the allocation used by the Smiths and assigned the building a depreciable basis of $49,840.1 Several months later, the IRS conducted a more formal appraisal. IRS employee Armando Rodriguez considered five comparable sales in the area and concluded that the building had a depreciable basis of $92,500.

¶10In 1984 the Smiths filed an amended income tax return for 1981. In this return they allocated $277,500 to the building and $2,500 to the land. Because of other changes in the amended return, the Smiths requested a refund for tax year 1981. The IRS admitted that it owed the Smiths a refund, but reduced the amount due by refusing to allow the Smiths to depreciate their building from a basis of more than $92,500.

¶11In December 1984, the Smiths sued the IRS in the Northern District of Texas (the 1984 lawsuit). The Smiths requested a refund of $12,833 for the year 1981. In addition, the Smiths asked the court to “stay, abate, and/or enjoin any assessment” for 1978 and 1979. The controversy with respect to these years arose from deductions the Smiths took for losses connected with their investment in an entity called “New Star Venture”. The IRS rejected these deductions, and eventually the Smiths accepted an arrangement that limited their deduction to the amount of their actual investment in 1978. The IRS and the Smiths signed a closing agreement for the “New Star Venture” dispute in early 1983. The Smiths’ complaint in the 1984 lawsuit sought to prevent the IRS from collecting penalties or interest for the invalidated portion of the “New Star Venture” deductions.

¶12In December 1986 the Smiths filed a second suit against the IRS (the 1986 lawsuit). This suit involved only the Smiths’ depreciation deduction for 1982. The Smiths again gave their office building a basis of $277,500. This worked out to a refund of $14,934. In both lawsuits the Smiths asked the court for attorney’s fees.

¶13The district court awarded summary judgment to the IRS on the issues pertaining to 1978 and 1979. The allocation of basis question was tried to a jury in February 1987. By the time the jury rendered its verdict, the IRS had raised its estimate of the building’s 1981 value to $108,000.2 The Smiths, meanwhile, had come down to “at least $250,000”. After hearing the evidence, the jury decided the building had been worth $172,000. As a result, the Smiths were entitled to a refund of $3,459.

¶14.In the 1986 lawsuit, the district court granted the government’s motion for summary judgment based on the outcome of the 1984 lawsuit. This gave the Smiths a further refund of $4,013. All in all, the two lawsuits brought the Smiths only $7,472 of the $27,767 they originally sought. Nonetheless, the Smiths renewed their request for attorney’s fees.

¶15On June 12, 1987, the district court denied the Smiths’ motion for fees. The district court found that the Smiths’ recovery was not “a substantial victory with respect to the amount in controversy”. The court also noted that:

[a]s a practical matter, the jury’s finding that the land was valued at $111,000 and the building at $172,000 represents the midpoint between the parties’ claimed allocations and indicates that the IRS’s position was, to a certain extent, reasonably justified.

¶16*245The Smiths have appealed.3

¶17II.

¶18Before turning to the question of attorney’s fees, we first address the Smiths’ arguments with respect to 1978 and 1979. The Smiths contend that the closing agreement is ambiguous and must be read in the light of extrinsic evidence.4 This argument is without merit.

¶19A closing agreement is interpreted under ordinary principles of contract law.5 In this case, the closing agreement is limited on its face to a determination of the Smiths’ 1978 and 1979 losses from New Star Venture. The agreement does not purport to apply this determination to the Smiths’ taxable income for those years, nor does it address the question of penalties and interest. The limited scope of the closing agreement does not make it ambiguous, however, because the calculation of taxable income and the assessment of penalties and interest are provided for by law.6

¶20The closing agreement does not bar the IRS from demanding penalties and interest from the Smiths. On the contrary, the agreement demonstrates that the Smiths underpaid their income tax for 1978 and 1979 by overstating the loss they sustained on their investment in “New Star Venture”. The district court correctly granted summary judgment to the IRS on this issue.7

¶21III.

¶22In tax cases, a litigant may not recover attorney’s fees from the government unless he satisfies the district court that he is a “prevailing party” as defined by the Internal Revenue Code. Section 7430 of the Code now provides that a “prevailing party” must establish “that the position of the United States ... was not substantially justified”.8 In addition, the taxpayer must “substantially prevail” with respect to either “the amount in controversy” or “the most significant issue ... presented”.9 We conclude that the Smiths have not met the first of these two requirements.10

¶23*246In deciding whether the position of the United States was substantially justified, we “focus on the IRS’s position at the time the taxpayer’s petition was filed”.11 The relevant appraisal in this case is the one Armando Rodriguez performed for the IRS.12 Mr. Rodriguez used both comparable sales and an income-stream analysis to reach his conclusion that the building was worth $92,500 in 1981. The Smiths must show that the IRS was unjustified in adopting the Rodriguez report.

¶24The Smiths contend that Rodriguez’s estimate was unreasonable because $92,500 is considerably less than the value of the building as determined by the jury. “[T]he court is not required to remain blind to what everyone else, including the jury, could see, namely that a market valuation of the building below $10 a square foot was inherently unreasonable ...”. That their own estimate was well above the jury’s figure does not trouble the Smiths. The Smiths maintain that the district court erred when it “considered and weighed [the] Smiths’ position against the government’s position.

¶25We disagree. The district court correctly viewed the government’s final administrative position in context. The record suggests that the Smiths own an unusual building in a neighborhood with great but uncertain potential for growth and development. The inaccuracy of the Smiths’ own estimate is relevant because it tends to confirm the difficulties that Rodriguez faced when appraising the building for the IRS. The more difficult it is to appraise a building, of course, the more leeway we must give the IRS before concluding that its position is “unreasonable” or “not substantially justified”.13

¶26The Smiths also challenge Rodriguez’s methodology. The Smiths insist that Rodriguez should have used replacement cost analysis, and they question the IRS’s decision not to include a nearby parking lot in its comparable sales figures. These arguments were presented to the jury together with the government’s answers.14 The Smiths now contend that the government’s answers were “patently frivolous”. This is, in effect, a direct attack on the jury’s verdict. The jury found — and we agree— that Rodriguez’s methodology was not so flawed as the Smiths suggest.15 There is inevitably a subjective aspect to the shaping of any appraisal; the Smiths have failed to show that the IRS’s acceptance of *247the Rodriguez report was “not substantially justified”.

¶27IV.

¶28For the foregoing reasons, the judgment of the district court is AFFIRMED.