United States v. Goldsmith

FILED

1

3 SOUTHERN DISTRICT OF CALECRNIA

4 DEPUTY

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

UNITED STATES OF AMERICA, Case No.: 3:20-cv-00087-BEN-KSC

12 Plaintift, ) ORDER DENYING THE

13]| v. ) GOVERNMENT’S MOTION TO

ROBERT GOLDSMITH, AMEND TRE IUDGMENT

15 Defendant. ) [ECF No. 29]

16 —_

INTRODUCTION

18 Plaintiff, the United States of America (“Plaintiff” or the “Government”), with the

191! authorization of the Secretary of the Treasury, see 31 U.S.C. § 3711(g)(4)(C), and at the

20|| direction of the Attorney General of the United States, brings this action to collect from the

21 Defendant, Robert Goldsmith (“Defendant” or “Mr. Goldsmith”), an outstanding civil

22 penalty pursuant to 31 U.S.C. § 5321(a)(5) for failure to timely file Reports of Foreign

231! Bank and Financial Accounts (“FBARs”) for the 2008, 2009, and 2010 calendar years.

First Amended Complaint, ECF No. 3 (“FAC”) at 1,!

25 Before the Court is the Government’s Motion to Amend Judgment (the “Motion’’).

ECF No. 19. The Motion was submitted on the papers without oral argument pursuant to

Unless otherwise indicated, all page number references are to the ECF-generated

page number contained in the header of each ECF-filed document.

all

Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civi

2|| No. 30. After considering the papers submitted, supporting documentatic

3|| law, the Court DENIES the Government’s Motion.

41. BACKGROUND

5 A detailed factual and procedural history of this case is set forth in the Court’s May

25, 2021 Order granting summary judgment in the Government’s favor in United States v.

7|| Goldsmith, --- F. Supp. 3d ---, No. 3:20-cv-00087-BEN-KSC, 2021 WL 2138520, at **1-

6 (S.D. Cal. May 25, 2021). On May 26, 2021, in accordance with that order, the Clerk of

9||the Court entered judgment in favor of Plaintiff, the United States of America, in the

amount of $309,453.48, consisting of (1) $273,846.00 in penalties authorized by 31 U.S.C.

11}} § 5321(a)(5)(C)-(D) for willful violations of Mr. Goldsmith’s obligation to report foreign

12|}accounts during the 2008, 2009, and 2010 tax years; (2) $30,520.70 in late payment

penalties authorized by 31 U.S.C. § 3717(e)(2); and (3) $5,086,78 for pre-judgment interest

authorized by 31 U.S.C. § 3717(a)-(d). See Judgment, ECF No. 28. The Clerk also noted

that Plaintiff would recover post-judgment interest pursuant to 28 U.S.C. § 1961 from the

date of judgment until the judgment is paid in full. 28 U.S.C. § 1961 (a). See id.

17 On June 23, 2021, the Government timely filed a Motion to Amend the Judgment.

18|| Compare Fed. R. Civ. P. 59(e) (requiring a motion to amend a judgment to be filed no later

19||than 28 days after the entry of judgment) with Motion, ECF No. 29-1 (“Mot.”). Mr.

20|| Goldsmith never opposed the Motion. However, on July 26, 2021, Mr. Goldsmith filed a

Notice of Appeal. ECF No. 31. On July 30, 2021, the Ninth Circuit issued an order that

22||Mr. Goldsmith’s Notice of Appeal was ineffective until the Court disposes of the

3 Government’s outstanding Motion to Amend the Judgment.” ECF No. 34.

Hl. LEGAL STANDARD □□

5 Because “specific grounds for a motion to amend or alter in RC

Where a party files a motion to amend a judgment before a notice of appeal has been

filed, as was the case here, a subsequently filed Notice of Appeal becomes effective on the

28 day the Court enters the order disposing of the motion to amend the judgment. FED. R. Clv.

P. 58(e), 59(e); see also FED. R. App. P. 4(a)(4)(A)(iv).

{4

1}/59(e)], the district court enjoys considerable discretion in granting or denying the motion.

2||See, e.g., McDowell v. Calderon, 197 F.3d 1253, 1255 n.1, 1256 (9th Cir. 1999) (“Th

district court therefore did not abuse its discretion in denying reconsideration.”); see als

4|| Palo Alto Town & Country Vill., Inc. v. Deutsche Lufthansa A.G., 91 F. App’x 550, 55.

Cir. 2004) (affirming the district court’s decision because it “did not abuse it

6|| discretion in denying Town & Country’s motion to alter or amend the judgment” where th

7||“[e]vidence to support its ‘final determination’ argument was available to Town & Countr

8||at the time of summary judgment, and thus [could not] qualify ‘as newly discoverec

9||evidence’”). However, amendment of judgment qualifies as reconsideration of a judgmen

10}) after its entry, which is an “extraordinary remedy, to be used sparingly.” Kona Enters., Inc

Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

12 A court may find it appropriate to amend a judgment where “(1) the district court i

presented with newly discovered evidence, (2) the district court committed clear error o

made an initial decision that was manifestly unjust, or (3) there is an intervening change it

controlling law.” United Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 78(

16]| (9th Cir. 2009) (internal citations omitted). “Clear error occurs when ‘the reviewing cour

the entire record is left with the definite and firm conviction that a mistake has beer

18|}committed.’” Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting

19|| United States v. U.S. Gypsum Co., 333 U.S. 364, 395 ( 1948)). Importantly, a “Rule 59(e

20|| motion may not be used to ‘raise arguments or present evidence for the first time when they

could reasonably have been raised earlier in the litigation.’” Rishor v. F erguson, 822 F.3c

492 (9th Cir. 2016).

23 In reviewing a motion to amend judgment following a grant of summary judgment.

courts can consider the record available at the time the Court granted summary judgment.

Palo Alto, 91 F. App’x at 551; see also Lippi v. City Bank, 955 F.2d 599, 604, 614 (9th Cir.

1992) (affirming the district court’s decision declining to (1) enter the judgment in the form

sought by the trustee or (2) amend or alter the judgment, “indicating its view that the issues

28]| of recovery against the remaining defendants had been decided conclusively at summary

dite

1}|judgment”). Denial may be appropriate where the evidence relevant to amending |

judgment was available “at the time of summary judgment, and thus cannot qualify a

‘newly discovered evidence.”” Palo Alto, 91 F. App’x at 551; see also Lippi, 955 F.2d a

(finding that because “the district court properly declined to consider supplementa

5|| materials filed by the trustee after the hearing on the summary judgment motion, we do no

6|| consider those materials in reaching our decision”).

7\|IV. DISCUSSION

8 The Rolling Stones said it best: “You can’t always get what you want.” In this case

9|| however, the Government got exactly what it wanted. The Court awarded the Governmen'

the exact sum of damages it requested in not just the Government’s Complaint but also it:

Motion for Summary Judgment and Reply Brief. Nonetheless, the Government now seeks

increased damages.

13 The Government advances various reasons that the Court should amend the

Judgment even though (1) the Court awarded the Government the amount prayed for and

the deficiencies in the Judgment were due to the Government’s failure to provide the

16}|Court with the information it needed to award the Government the increased damages it

17||now seeks. The Government argues the Court’s judgment qualifies as a clear error of law.

18}| warranting amendment of the judgment, for three reasons: First, it contends that the

19}) Judgment “does not clarify that judgment is [being entered] against Robert Goldsmith.”

20/| Mot. at 3:10-11; 3:23-4:2. Second, it argues that “the Judgment does not state that statutory

21]|penalties continue to apply post-judgment.” Mot. at 3:9-10. Third, it contends that

22||“[nJeither the Court’s Order nor the Judgment includes the full amount of pre-judgment

interest and penalties in the computation of the amount due as of the judgment date.” /d.

at 3:7-9. The Government argues “[c]orrecting these issues will prevent manifest injustice

25|| by awarding the United States the accruals to which it is statutorily entitled and by allowing

26]| [it] . . to request and record an abstract of judgment, which will protect the United States’

interest against other creditors of the defendant, Robert Goldsmith.” Jd. at 4:5-9.

28 The May 26, 2021 judgment (the “Judgment”) specified as follows:

-4.

1 Judgment [is entered] in favor of Plaintiff, the United States of

America, in the amount of $309,453.48, consisting of (1)

2 $273,846.00 in penalties authorized by 31 U.S.C. §

3 5321(a)(5)(C)-(D) for willful violations of Mr. Goldsmith’s

obligation to report foreign accounts during the 2008, 2009, and

4 2010 tax years; (2) $30,520.70 in late payment penalties

5 authorized by 31 U.S.C. § 3717(e)(2); and (3) $5,086.78 for pre-

judgment interest authorized by 31 U.S.C. § 3717(a)-(d).

6 Plaintiff shall also recover post-judgment interest pursuant to 28

7 U.S.C. § 1961 from the date of judgment until the judgment is

paid in full. 28 U.S.C. § 1961(a).

8

9 Judgment, ECF No. 28 (emphasis added). As outlined below, the Court finds the

10 Government’s three grounds for amending the Judgment show neither a clear error of law

11 manifest injustice. Thus, the Court DENIES the Motion to Amend the Judgment.

12 A. Naming of Mr. Goldsmith

13 The Government “seeks to amend the judgment to make clear . . . that judgment is

14 being entered against Robert Goldsmith.” Mot. at 2:28-3:3. The Court finds this argument

15||*° be a non-issue. First, the Court’s order granting summary judgment and directing the

16 Clerk of the Court to enter judgment in favor of the Government does reference Mr.

7 Goldsmith by name. See Order, ECF No. 27 (“SJ Order”) at 72-73, {| 1-3. Second, as

18 shown above, the Judgment clearly states that judgment is entered “in favor of Plaintiff,

19 the United States of America . . . for willful violations of Mr. Goldsmith’s obligation to

feport foreign accounts during the 2008, 2009, and 2010 tax years.” See Judgment, ECF

No. 28. There are only two parties in this case: Plaintiff, and Mr. Goldsmith, the only

9 defendant. Even if the Judgment does not spell out that it is entered against “Defendant

73 Robert Goldsmith,” it is clear from the fact that Judgment is entered in favor of “Plaintiff,

74 the United States of America,” that the Judgment would be against Mr. Goldsmith, the only

25 other party in this case. Cf Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of

Health & Hum. Res., 532 U.S. 598, 603 (2001). Thus, the Court does not find the failure

17 of the Judgment, which does reference Mr. Goldsmith by name, to spell out that it is entered

28 against Mr. Goldsmith to qualify as error justifying amending the Judgment after its entry,

-5-

] B. _Post-Judgment Amounts

2 The Government also argues that the Judgment fails to specify that statutory

3}| penalties continue to apply post-judgment. Mot. at 3:9-10. It asks the Court to “amend the

judgment entered in this matter at ECF No. 28 to reflect the amount due and to state that ir

5|| addition to pre-judgment interest pursuant to 31 U.S.C. § 3717 and post-judgment □□□□□□□□

6|| pursuant to 28 U.S.C. § 1961(a) that the defendant Robert Goldsmith is also liable for late-

payment penalties pursuant to 31 U.S.C. § 3717(e)(2) until the debt is paid in full.” Jd. at

1:17-24. However, the Judgment clearly states that “Plaintiff shall also recover post-

judgment interest pursuant to 28 U.S.C. § 1961 from the date of judgment until the

judgment is paid in full.” See ECF No. 28. Thus, it clearly provides for post-judgment

11}}interest. The Government’s Motion for Summary Judgment asked for the following:

[T]he United States requests that the Court grant it summary

13 judgment on the issue of Defendant’s willfulness and a money

14 judgment as civil penalties under 31 U.S.C. § 5321(a)(5). . .

along with all non-payment related penalties under 31 U.S.C. §

15 3717(e)(2) and interest that accumulate between April 27, 2020

16 and the date of judgment, plus post judgment interest under 28

U.S.C. § 1961, and any penalties according to law, from the

17 date of judgment until the judgment is paid in full.

18]| Mot. at 23:7-18 (emphasis added); see also Reply, ECF No. 21 (requesting identical relief

including “post-judgment interest under 28 U.S.C. § 1961”); First Amended Complaint,

20||ECF No. 3 (failing to request post-judgment relief pursuant to 31 U.S.C. § 3717(e)(2)).

21 The Government sought five types of penalties in its motion for summary judgment.

First, it sought statutory penalties in the amount of fifty percent (50%) of the balance in the

account on June 30" of the reporting year for which a FBAR was due. See 31 U.S.C. §

241) 5321(a)(5)(C). Second, it sought late payment penalties pursuant to 31 U.S.C. §

25||3717(e)(2), which allows “[t]he head of an executive, Judicial, or legislative agency,” like

the Secretary of the Treasury, to “assess on a claim owed by a person... . a penalty charge

of not more than 6 percent a year for failure to pay a part of a debt more than 90 days past

See also United States v. Garrity, No. 3:15-CV-243(MPS), 2019 WL 1004584, at

-6-

(D. Conn. Feb. 28, 2019), appeal withdrawn, No. 19-1145, 2019 WL 3384830 (2d Cir

2|| July 23, 2019) (noting that “[flederal agencies must assess a late payment penalty ‘of no

more than 6 per cent per year for failure to pay part of a debt more than 90 days past due’”)

C.F.R. §§ 5.5(a), 901.9(d) (noting that “agencies shall charge a penalty, pursuant to 31

U.S.C. 3717(e)(2), not to exceed six percent a year on the amount due on a debt that is

6|| delinquent for more than 90 days,” which “shall accrue from the date of delinquency”

7|| (emphasis added). Third, it sought pre-judgment interest, pursuant to 31 U.S.C. § 3717(a)-

which allows the Secretary of the Treasury, to “charge a minimum annual rate □□

interest on an outstanding debt . . . equal to the average investment rate for the Treasury

and loan accounts for the 12-month period ending on September 30 of each year.

11|}rounded to the nearest whole percentage point.” See also 31 C.F.R. § 5.5(a) (“Interest shall

12||be charged in accordance with the requirements of 31 U.S.C. ia). ): 31 CER, □

13||901.9(b)(1) (providing that “[i]nterest shall accrue from the date of delinquency, or as

14|| otherwise provided by law”). This “[i]nterest does not compound, 31 C.F.R. § 901.9(b)(2).

and it does not accrue on late payment penalties, 31 U.S.C. § 3717(f).” Garrity, 2019 WL

1004584, at *9. Rather, “[i]nterest and late payment penalties begin to accrue on the day

17||the assessment is first mailed to the debtor.” Jd. Fourth, the Government sought post

18}| judgment interest under 28 U.S.C. § 1961, which allows “[i]nterest . . . on any money

judgment in a civil case recovered in a district court,” which is “calculated from the date

of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity

21|/ Treasury yield, as published by the Board of Governors of the Federal Reserve System, for

22|| the calendar week preceding the date of the judgment.” 28 U.S.C. § 1961(a). Fifth, the

Government sought “any penalties according to law, from the date of judgment until the

judgment is paid in full.” Motion, ECF No. 19-1 at 23:7-18.

25 Other courts have awarded late-payment penalties until the FBAR penalty is paid in

26|| full. See, e.g., United States v. Kahn, No. 17-cv-7258-KAM-VMS, 2019 WL 8587295, at

27||*12 (E.D.N.Y. Sept. 23, 2019), aff'd, 5 F.4th 167 (2d Cir. 2021) (“The late-payment

penalties and interest will continue to accrue until the FBAR penalty is paid.”); United

dhe

1}| States v. Shemesh, No. 20-cv-16305-KM-ESK, 2021 WL 3706735, at *4 (D.N.J. Aug. 19

2|| 2021) (“The post-judgment interest on the FBAR penalty assessment shall accrue pursuan

3}| to 28 U.S.C. § 1961 and post-judgment late-payment penalties shall accrue pursuant tc

U.S.C. § 3717(e)(2) and 31 C.F.R. §§ 5.5(a) and 901.9, until the judgment is paid ir

5}| full.”). For instance, in United States v. Garrity, the District Court of Connecticut enterec

6|| judgment in favor of the Government without specifying an amount after the jury founc

7|| the defendant had willfully failed to file a FBAR in violation of 31 U.S.C. § 5314. 2015

WL 1004584, at *1. The Government later filed a motion to amend the judgment to include

a civil penalty of $936,691.00 plus interest and a late payment penalty, while the defendan

10/| filed a motion to reduce the judgment, arguing the maximum civil penalty was

11}/$100,000.00. Jd. The Garrity court granted the Government’s motion to amend the

judgment while denying the defendants’ motion to reduce the judgment. Jd. In granting

Government’s motion, it ordered that “[t]he late payment penalty and interest wil

14/| continue to accrue until the FBAR penalty is paid.” Jd. It also directed the Clerk of the

15}| Court to “enter judgment for the Plaintiff in the total amount of $1,330,460.50, consisting

of the civil penalty of $936,691, interest of $56,252.78, and a late payment penalty of

17|| $337,516.72.” The Amended Judgment in that case stated “that judgment is entered in

favor of the plaintiff and against the defendants in the total amount of $1,330,460.50,

consisting of the civil penalty of $936,691, interest of $56,252.78, and a late payment of

20||$337,516.72.” Jd. at ECF No. 211. Thus, even the amended judgment in Garrity did not

include a clause saying that “statutory penalties accrue post judgment.”

22 Here, the Government’s Motion for Summary Judgment asked for (1) all non-

23||payment related penalties under 31 U.S.C. § 3717(e)(2) and interest that accumulate

24|| between April 27, 2020 and the date of judgment,” which the Court awarded; (2) post

judgment interest under 28 U.S.C. § 1961, which the Court also awarded; and (3) “any

26|| penalties according to law, from the date of judgment until the judgment is paid in full.”

27||Mot. at 23:7-18. The Court did not award this last general subset included in the

28||Government’s request because it had already awarded the specific penalties the

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1 || Government had asked for under 31 U.S.C. § 3717(e)(2) as well as post-judgment interest

2||The Government also failed to address what other “penalties according to law” it shoulc

3|| receive in its briefing. Thus, the Court DENIES the Government’s Motion on this basis

well. See, e.g., Palo Alto, 91 F. App’x at 551 (noting that courts may deny a motion tc

5||amend a judgment where the evidence relevant to amending a judgment was available □□□

6|) the time of summary judgment, and thus cannot qualify as ‘newly discovered evidence’”)

7 C. Pre-Judgment Interest

8 In the Court’s May 25, 2021 Order granting summary judgment, it explicitly noted

9)|when awarding the Government the full amount of damages it requested, tha

“[uJnfortunately, the Government provide[d] the Court with no information whatsoever as

11}|to how [the] damages [it sought] were calculated, including but not limited to (1) the

12|| calculations for the penalty, (2) how the late payment penalty was calculated, and (3) how

pre-judgment interested was calculated.” SJ Order at 68:12-18. This left “the Court

guessing whether interest was calculated using the correct dates or applying the correct

interest rates.” Jd. However, because the Court’s own calculations indicated the damages

sought were far below the amount the Government could have sought, the Court found it

17|| appropriate to enter judgment in the amount requested by the Government. Jd. The

Government acknowledges that the Court’s Order applied the correct statutes and granted

its requests for penalties “in substance,” but it also acknowledges that the Court “struggled

discern how the United States calculated the amounts requested” due to its failure to

provide that information. See Mot. at 2:16-17, 3:22-23 (citing SJ Order at 70-71 and ECF

22|| No. 28). Now, the Government contends that “[b]ecause the Court ruled that pre-judgment

interest and late payment penalties should be granted in this case, the United States now

moves to amend the Order and Judgment to include the additional interest and penalties

25|| that accumulated between April 27, 2020 and judgment being entered on May 26, 2021.”

26||Mot. at 2:15-18. As relates to prejudgment interest, the Government’s Motion for

27||Summary Judgment asked for the following:

28

Sn

1 [T]he United States requests that the Court grant it summary

judgment on the issue of Defendant’s willfulness and a money

2 judgment as civil penalties under 31 U.S.C. § 5321(a)(5) for

3 his willful failure to report his relationship with Basler

Kantonalbank, for the 2008, 2009, and 2010 years, in the amount

4 of $309,453.48 as of April 27, 2020 (which includes, in addition

5 to the FBAR penalty assessments of $273,846.00, a late payment

penalty imposed under 31 U.S.C. § 3717(e)(2) of $30,520.70 and

6 pre-judgment interest of $5,086.78) along with all non-

ayment related penalties under 31 U.S.C. § 3717(e)(2) and

7 pay Pp

interest that accumulate between April 27, 2020 and the date

8 of judgment...

Motion, ECF No. 19-1 at 23:7-18 (emphasis added); see also Reply, ECF No. 21; FAC

The Government states that “the reason that the amounts sought by the government were

11]| lower than the amounts authorized by statute was because they were calculated only as of

April 27, 2020, not as of the ultimate judgment date, which was unknown to the Unitec

States at the time it filed its motion for summary judgment.” Mot. at 2:21-24. However.

14]! April 27, 2020 has no significance to this case. There are no docket entries showing any

filings on this date. Rather, the Government filed its Motion for Summary Judgment

16|| approximately nine months later, on February 1, 2021, and provides no explanation as to

why it neither (1) provided current calculations as of the date of filing its motion nor (2)

indicated how it arrived at is calculations, which would have allowed the Court to compute

amounts owed from the date the Government filed its motion for summary judgment

up until the date of judgment. In fact, had the Government simply asked for penalties up

until the date of judgment and provided the Court with the calculations it wanted the Court

22||to use, the Court could have awarded penalties through the date of judgment (provided it

approved of the Government’s calculations).

24 The Government acknowledges that the Court used the correct date of delinquency

25]|(i.e., the June 27, 2018 date of the Government’s demand for payment). See Mot. at 4:14-

18 (citing SJ Order at 70). It also agrees that (1) late payment penalties begin accruing

only after ninety (90) days following the date of delinquency, which in this case, would be

September 25, 2018, see Mot. at 4:14-18; SJ Order at 70:17-18, and (2) “[iJnterest is

-10-

1}| provided for in 31 U.S.C. § 3717(a)(1), which in this case is 1% annually,” see Mot. a

2||4:19-20 (citing Order, ECF No. 27 at 71). However, the Government correctly points ou

the Court inadvertently calculated penalties from the date they began accruing (i.e.

4|| ninety (90) days after the demand for payment) rather than the date of delinquency. Mot

5|| at 4:14-27.? Nonetheless, the Court’s order stated that it calculated the penalties due solely

6|| for the purpose of ensuring the Government was not requesting penalties in excess of □□□□□

allowed under the law but ultimately awarded the Government penalties based on its

request, rather than the amount recoverable under the law. Thus, any error in the Court’s

9||calculation is harmless given the judgment was based on the Government’s requestec

penalties rather than the Court’s calculations. See, e. g., Las Vegas Sands, LLC v. Nehme.

632 F.3d 526, 534 (9th Cir. 2011) (noting that the Ninth Circuit will only reverse the district

court if its ruling was prejudicial and would have warranted a different judgment).

13 In addition to arguing the Court used the wrong date of delinquency, the Government

also argues that the Court should award it additional penalties and interest from April 27.

2020 (the date used by the Government in its own motion for summary judgment) through

16]| the date of entry of judgment. The Government acknowledges that in light of its failure to

provide calculations, “the Court correctly noted[ ] the interest due for that period is the

18|| product of (a) the number of years that passed between when the demand was made and

judgment, 1064/365 (i-e.[,] number of days in the period divided by the number of days in

20||a year), (b) the annual interest rate, 1%, and (c) the amount of the assessment ($273,846),

2

The Government elaborates that “[t]he number of days used in the Court’s Order is

different [than the Government’s] likely due in part to the Court not counting the ninety

during which delinquent payments are not due, but penalties nevertheless accrue.”

Mot. at 5:2-6. This mistake arose because 31 U.S.C. § 3717(e)(2) allows “a penalty charge

of not more than 6 percent a year for failure to pay a part of a debt more than 90 days past

due.” 31 U.S.C. § 3717(e)(2) (emphasis added). However, 31 C.F.R. § 5.5(a) requires that

6 interest and penalties be assessed “in accordance with the provisions of 31 U.S.C. 3717

and 31 CFR 901.9, on Treasury debts.” 31 C.F.R. § 901.9(d), in turn, clarifies that even

27|| though a penalty does not become due until the debt has not been paid for more than ninety

28 (90) days, that “penalty, pursuant to 31 U.S.C. 371 7(e)(2), .. . shall accrue from the date

of delinquency.”

il fin

for a total of $7,982.80.” Mot. at 5:6-11; see also SJ Order at 71:18-19 (noting tha

2||“[b]ecause payment was not received, interest accrued at the rate one percent (1%) as 0:

June 30, 2018”). As shown below, applying a one percent (1%) interest rate to the penalties

sought by the Government resulted in pre-judgment interest of $3,185.10 for the 2008 tay

5|| year, $2,136.38 for the 2009 tax year, and $1,806.02 for the 2010 tax year, for a total o!

6|| $7,127.50 for all three years:

[= Penaltyfor|, Annual | Daily | Actual | Interest

Year: | Willful — Interest [Interest | Interest [Sought by

9||| | Violations: |" |"""°*) (1%): | Rate: | Accrued: | Plaintiff:

2008 _|$122,375.00 | 6/27/2018 | 950* [$1,223.75] $3.3527| $3,185.10 | Unknown

2009 $82,082.00 | 6/27/2018 $820.82 | $2.2488 | $2,136.38 | Unknown

2010 _| $69,389.00 | 6/27/2018 $693.89 | $1.9011 | $1,806.02 | Unknown

□□□□□□□□□□□□□□□□□□□□□□□ =| | | 87,127.50 | 85,086.78

13||SJ Order at 71:19-28.

14 The Government calculates the pre-judgment interest as follows:

a '|_ |Interest], |(Days Since) | Days ina Judgment _

Year | accessed |*| Rate || Demand Year) Interest Due |

17|||_ 2008 $122,375.00 1,064 365 | = | $3,567.32

$82,082.00 |x| 1% |x| 1,064 [+| 365 | = | s2392.74

2010 | $69,389.00 1,064 =| 365 | = | $2,022.74

19 eeieeseee

aotal |s273.846.00)| 1% |x| 1064 |=] 365 | = | s79szs0

at 5:11-17. Thus, the Government now asks the Court to award the $2,896.02

22

The Court used an Excel formula to calculate “Days Since” column (i.e., the number

of days since the date the delinquency letter was mailed) up through the date the Court

calculated the Government’s damages. The Court updated Excel on the date it entered the

25|| Order to ensure the “Days Since” formula would auto-populate as of the date the Court

26 entered its order. It is unclear why Excel showed the “Days Since” as 950 rather than 1,063

given the number of days between June 27, 2018 and May 26, 2021 is 1,063. In any event,

27||the Court’s use of a date calculator confirms that neither the Court’s 950 days nor the

28 Government’s use 1,064 days is correct. See Mot. at 5:1-2 (providing that “[t]here were

1064 days from June 27, 2018 to the date of entry of the judgment on May 26, 2021”).

«| 3~

difference between the amount it requested and was awarded ($5,086.78), and the amoun

2|| it contends it was owed as of the date of entry of judgment ($7,982.80).

3 Next, the Government correctly notes that “the late payment penalty due for tha

4||period is the product of (a) 1,064/365, (b) the annual penalty rate of 6%, and (c) the

5|| assessment ($273,846), for a total of $47,896.79.” Mot. at 5:18-20. As shown below, <

percent (6%) penalty sought by the Government amounts to $15,489.66 for 2008

$10,389.56 for 2009, and $8,782.94 for 2010, for a total of $34,662.15:

ee enalty Due

_— ee : Date (Daily □□□

| P en alty = — 6% = Daily Penalty Davs Penalty x Payment

10||| Year: | for Willful | Annual | Penalty at Penalty

eee. dL Began to |Since:| Days Since

11||| Violations: | Penalty: |Amount: Ponslty | "oust BY

ast : IRS:

□□□ pees oe Accrued):

2008 _[$122,375.00 | $7,342.50| $20.12 |9/25/2018 $15,489.66

2009 $82,082.00 | $4,924.92] $13.49 [9/25/2018 $10,389.56

2010 __| $69,389.00 | $4,163.34] $11.41 [9/25/2018 _ $8,782.94

16|| SJ Order at 70:18-28.

17 The Government calculates the penalties it should be owed in its Motion to Amend

the Judgment as follows:

19 a Penal =. |, (imterest} Wace eee oan a} __ |Judgment Interest

_ | Assessed | ~| Rate | *| Demand |~ | ear) |= DUG

20

2008 |$122,375.00 1,064 =| 365 |= | $21,403.89

|||-2009_| $82,082.00 1,064 =| 365 |= | $14,356.48

2010] $69,389.00 soos 365 [=| 12,136.42

24 Mot. at 5:20-28.

25

The Government now asks the Court to award the $17,376.09 difference between

26

The Government argues that by using the date penalties became due (i.e., September

28 25, 2018) rather than the date they began accruing (i.¢., the date of delinquency, or June

27, 2018), the Court undercalculated its penalties.

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the amount it requested and was awarded ($30,520.70), and the amount it contends it was

2|| owed as of the date of entry of judgment ($47,896.79). However, the Court expressly notec

its Order that the Government sought penalties below the amount to which it wa:

entitled: “Thus, the Court finds the actual late penalty owed or allowed by law ($34,662.

5|| exceeds the late payment penalty sought by the Government ($30,520.70), and as such, the

penalty sought by the Government is appropriate.” SJ Order at 71:1-3. To the extent the

7||Government argues that the Court’s calculations were incorrect because they used the

wrong date for when the penalties began to accrue, the Court finds this does not □□□□□□□

9|}amendment because (1) the Court still awarded the Government the complete amount:

requested in its moving papers and (2) the Government failed to provide any calculations

11|/to the Court. This information was available at the time the Government moved fot

12)|summary judgment. Thus, the Government’s request to amend the judgment on this basis

not warrant the extraordinary remedy of amendment after entry of judgment. See,

Sch. Dist. No, 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.

1993) (denying a motion for reconsideration where “[t]he overwhelming weight of

authority is that the failure to file documents in an original motion or opposition does not

turn the late filed documents into ‘newly discovered evidence’”).

CONCLUSION

19 For the above reasons, the Court DENIES Plaintiffs Motion to Amend the

Judgment.

21 IT IS SO ORDERED.

22|| DATED: September 20, 2021 y

23 -R . BENITEZ

United StatesDistrict Judge

24

25

26

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28

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