# United States v. Goldsmith

> District Court, S.D. California · September 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10640115

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10640115

## How later opinions describe it (automated extraction)

- noting that the Ninth Circuit will only reverse the district court if its ruling was prejudicial and would have warranted a different judgment
- affirming the district court’s decision declining to (1) enter the judgment in the form sought by the trustee or (2
- noting that courts may deny a motion tc 5||amend a judgment where the evidence relevant to amending a judgment was available □□□ 6|

## Opinion text

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
-8-

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.
-13-

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
a7
28
-14-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640115. Public record. Not legal advice.