Cheung Inc v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN N.S. CHEUNG, INC.,  No. 07-35161

Plaintiff-Appellee,

v.  D.C. No.

CV-04-02050-RSM

UNITED STATES OF AMERICA,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted

July 10, 2008—Seattle, Washington

Filed September 23, 2008

Before: Richard R. Clifton and N. Randy Smith,

Circuit Judges, and Brian E. Sandoval,* District Judge.

Opinion by Judge Sandoval

*The Honorable Brian E. Sandoval, United States District Judge for the

District of Nevada, sitting by designation.

13457

CHEUNG v. UNITED STATES 13459

COUNSEL

Eileen J. O’Connor, Assistant Attorney General, Teresa E.

McLaughlin, Department of Justice, Kenneth W. Rosenberg,

Department of Justice, for the defendant-appellant.

13460 CHEUNG v. UNITED STATES

David J. Lenci and Michael K. Ryan of Kirkpatrick & Lock-

hart Preston Gates Ellis LLP of Seattle, Washington, for the

plaintiff-appellee.

OPINION

SANDOVAL, District Judge:

This appeal requires the interpretation of the statutory pro-

visions providing for the recovery of interest on a wrongful

levy judgment. Steven N.S. Cheung, Inc. (the “Company”)

filed an action against the government pursuant to 26 U.S.C.

§ 7426(a)(1)1 alleging that its property had been wrongfully

levied. The district court entered judgment in the Company’s

favor and ordered that the government pay the Company

$1,434,573.76, plus interest. Pursuant to § 7426(g), the dis-

trict court awarded interest at the overpayment rate estab-

lished by § 6621, except that it did not give effect to the flush

language of § 6621(a)(1). The flush language of § 6621(a)(1)

provides for a one and a half point reduction in the overpay-

ment rate “[t]o the extent that an overpayment of tax by a cor-

poration . . . exceeds $10,000.” The government appeals the

district court’s award of interest, arguing that the district court

erred in failing to reduce the overpayment rate to the extent

the wrongful levy judgment exceeded $10,000. We reverse

and hold that the flush language of § 6621(a)(1) applies to

wrongful levy judgments and therefore the district court

should have given effect to the rate reduction described

therein.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dr. Steven Cheung, an economics professor and consultant,

formed the Company on July 5, 1977, as a Washington State

1

Unless otherwise indicated, all statutory references are to the Internal

Revenue Code (26 U.S.C.).

CHEUNG v. UNITED STATES 13461

corporation. Originally, the Company issued 100 shares of

stock, all of which were owned by Cheung. On July 1, 1994,

Cheung transferred 49 of his shares to Linda Su, Ronald

Cheung, and Cecile Cheung as joint tenants with the right of

survivorship. On August 1, 1995, Cheung transferred another

49 shares to the same parties.

On February 5, 2003, pursuant to § 6861(a),2 the Internal

Revenue Service (“IRS”) issued a jeopardy assessment

against Cheung for income tax liability for the year 1993. The

assessment identified Cheung’s tax liability as $396,861, plus

a penalty in the amount of $293,327 and statutory interest in

the amount of $776,730, totaling $1,466,918. The same day,

the IRS, believing the Company was a nominee of Cheung,

issued and served a notice of jeopardy levy on the Company

pursuant to § 6331(a).3 Pursuant to the levy, the IRS collected

$353,575.93 from a corporate checking account. On February

27, 2003, a second notice of jeopardy levy was served on the

2

Section 6861(a) provides:

If the Secretary believes that the assessment or collection of a

deficiency, as defined in section 6211, will be jeopardized by

delay, he shall, notwithstanding the provisions of section 6213(a),

immediately assess such deficiency (together with all interest,

additional amounts, and additions to the tax provided by law),

and notice and demand shall be made by the Secretary for the

payment thereof.

3

Section 6331(a) provides:

If any person liable to pay any tax neglects or refuses to pay the

same within 10 days after notice and demand, it shall be lawful

for the Secretary to collect such tax (and such further sum as shall

be sufficient to cover the expenses of the levy) by levy upon all

property and rights to property (except such property as is exempt

under section 6334) belonging to such person or on which there

is a lien provided in this chapter for the payment of such tax . . . .

If the Secretary makes a finding that the collection of such tax is

in jeopardy, notice and demand for immediate payment of such

tax may be made by the Secretary and, upon failure or refusal to

pay such tax, collection thereof by levy shall be lawful without

regard to the 10-day period provided in this section.

13462 CHEUNG v. UNITED STATES

company, under which the IRS collected $708,985 from a

corporate investment account. On May 8, 2003, the Company,

in lieu of a forced liquidation of its real property assets, issued

a check in the amount of $372,012.83, satisfying Cheung’s

remaining tax liability. In total, the IRS’s levy efforts resulted

in the collection of $1,434,573.76 from the Company.

On October 31, 2003, the Company filed an administrative

claim for the return of funds improperly levied pursuant to

§ 6343(b).4 The claim was denied. Thereafter, on September

29, 2004, the Company filed a complaint for recovery of

wrongful levy pursuant to § 7426(a)(1).5 A bench trial then

commenced. At the conclusion of the government’s case, the

Company moved for a judgment on partial findings pursuant

to Federal Rule of Civil Procedure 52(c). The court granted

the motion, finding that the Company’s property had been

wrongfully levied. The court then entered judgment in favor

of the Company and ordered that the government pay the

Company $1,434,573.76, “plus interest as provided by law.”

4

Section 6343(b) states in pertinent part:

If the Secretary determines that property has been wrongfully

levied upon, it shall be lawful for the Secretary to return—

(1) the specific property levied upon,

(2) an amount of money equal to the amount of money levied

upon, or

(3) an amount of money equal to the amount of money

received by the United States from the sale of such property.

5

Section 7426(a)(1) states:

If a levy has been made on property or property has been sold

pursuant to a levy, any person (other than the person against

whom is assessed the tax out of which such levy arose) who

claims an interest in or lien on such property and that such prop-

erty was wrongfully levied upon may bring a civil action against

the United States in a district court of the United States. Such

action may be brought without regard to whether such property

has been surrendered to or sold by the Secretary.

CHEUNG v. UNITED STATES 13463

A hearing was set to determine the appropriate amount of

interest owed to the Company.

Section 7426(g) provides for the recovery of interest on a

judgment of wrongful levy “at the overpayment rate estab-

lished under section 6621.” In the case of a corporation,

§ 6621(a)(1) provides that the overpayment rate is the sum of

the “Federal short-term rate . . . plus . . . 2 percentage points.”

(Internal parenthesis omitted). The flush language of

§ 6621(a)(1) provides, however, for a one and a half point

reduction in the overpayment rate “[t]o the extent that an

overpayment of tax by a corporation for any taxable period

. . . exceeds $10,000.”

At the hearing, the parties disputed the applicability of the

rate reduction described in the flush language. The Company

argued that the plain meaning of the statute did not support a

reduction in the overpayment rate because a wrongful levy is

not an “overpayment of tax” as the term is understood under

the Internal Revenue Code (the “Code”). The government dis-

agreed, arguing that by applying the overpayment rate from

§ 6621 to interest recoverable on a wrongful levy judgment,

Congress treated a wrongful levy as overpayment of tax for

purposes of calculating the overpayment rate.

On January 5, 2007, the district court ruled in favor of the

Company, holding that a wrongful levy is not an overpayment

of tax within the meaning of § 6621(a)(1) and therefore that

the overpayment rate on a wrongful levy judgment is calcu-

lated without reference to § 6621(a)(1)’s flush language. The

court then awarded the Company $314,278.80 in interest

through October 24, 2006, the date of entry of judgment. The

court further ordered that the government pay additional inter-

est at a per diem rate of $383.31 from October 24, 2006

onward, subject to change based upon the Federal short-term

rate. On January 17, 2007, the district court awarded the

Company attorney’s fees and costs pursuant to § 7430,6 but it

6

Section 7430 provides for the recovery by the “prevailing party” of

“reasonable litigation costs,” including attorney’s fees, “[i]n any . . . court

13464 CHEUNG v. UNITED STATES

denied the Company’s request for statutory damages made

available by § 7426(h).7 Following entry of final judgment,

the government timely appealed the district court’s interpreta-

tion of § 6621(a)(1).8

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over final judgments of the district

courts pursuant to 28 U.S.C. § 1291. We review issues of stat-

utory construction de novo. DIRECTV, Inc. v. Hoa Huynh,

503 F.3d 847, 852 (9th Cir. 2007) (citing SEC v. Gemstar TV

Guide Int’l, Inc., 367 F.3d 1087, 1091 (9th Cir. 2004)).

III. ANALYSIS

[1] Whether the flush language of § 6621(a)(1) applies in

the case of a wrongful levy judgment is a question of first

impression. Because resolution of the issue turns on the inter-

pretation of the statute, we begin with the language of the stat-

ute itself. Ordlock v. C.I.R., 533 F.3d 1136, 1140 (9th Cir.

2008) (“The ‘starting point in every case involving the con-

struction of a statute is the language itself.’ ”) (quoting Grey-

hound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330

(1978)). “ ‘In ascertaining the plain meaning of a statute, the

proceeding which is brought by or against the United States in a connec-

tion with the determination, collection, or refund of any tax, interest, or

penalty under [the Internal Revenue Code].”

7

Section 7426(h) provides for statutory damages in an action brought

pursuant to § 7426 “if . . . there is a finding that any officer or employee

of the Internal Revenue Service recklessly or intentionally, or by reason

of negligence, disregarded any provision of [the Internal Revenue Code].”

8

The government does not appeal the district court’s factual findings

and conclusions of law as to whether the Company’s property was wrong-

fully levied. Nor does it appeal the district court’s award of attorney’s fees

and costs. For its part, the Company seeks its attorney’s fees and costs

associated with the instant appeal if it prevails. Because we hold in favor

of the government, we need not reach this issue.

CHEUNG v. UNITED STATES 13465

court must look to the particular statutory language at issue,

as well as the language and design of the statute as a whole.’ ”

Id. (quoting McCarthy v. Bronson, 500 U.S. 136, 139 (1991)).

“ ‘Where the statutory language is clear and consistent with

the statutory scheme at issue, the plain language of the statute

is conclusive and the judicial inquiry is at an end.’ ” Molski

v. M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007) (quot-

ing Botosan v. Paul McNally Realty, 216 F.3d 827, 831 (9th

Cir. 2000)). Where, on the other hand, “the words of a statute

are not conclusive as to congressional intent, they should be

placed in their proper context by resort to legislative history.”

Ordlock, 533 F.3d at 1140.

Section 7426(g) provides for the recovery of interest on a

wrongful levy judgment “at the overpayment rate established

under section 6621.” Section 6621 states in pertinent part:

§6621. Determination of rate of interest

(a) General Rule.—

(1) Overpayment rate.— The overpayment rate

established under this section shall be the sum of —

(A) the Federal short-term rate determined under

subsection (b), plus

(B) 3 percentage points (2 percentage points in the

case of a corporation)

To the extent that an overpayment of tax by a corpo-

ration for any taxable period (as defined in subsec-

tion (c)(3), applied by substituting “overpayment”

for “underpayment”) exceeds $10,000, subparagraph

(B) shall be applied by substituting “0.5 percentage

point” for “2 percentage points”.

Substituting “overpayment” for “underpayment” in

§ 6621(c)(3)(A), that provision reads, “The term ‘large corpo-

13466 CHEUNG v. UNITED STATES

rate [overpayment]’ means any [overpayment] of a tax by a

C corporation for any taxable period if the amount of such

[overpayment] for such period exceeds $100,000.”

According to the Company, the flush language of

§ 6621(a)(1) does not apply to wrongful levy judgments

because a wrongful levy is not an “overpayment of tax.”

Thus, the Company states in its brief that it “did not pay, let

alone overpay, any ‘tax’ when the IRS wrongfully and negli-

gently seized its property.” The government asserts, however,

that whether an overpayment of tax occurred is irrelevant. It

is the government’s position that Congress, in applying the

overpayment rate from § 6621 to wrongful levy judgments,

expressed its intent to treat such judgments as if they were

overpayments of tax for purposes of calculating the overpay-

ment rate regardless of their true nature. We are persuaded by

the government’s position.9

[2] The principal question before us is not whether a

wrongful levy is an overpayment of tax. Rather, the issue is

whether, in calculating the overpayment rate in connection

with a wrongful levy judgement, a rate reduction applies to

the extent that the wrongful levy exceeds $10,000. To be sure,

9

In advancing its interpretation of the relevant statutory provisions, the

government urges us to strictly construe the statutory language at issue

because in its view it represents a waiver of sovereign immunity from an

award of interest. There is no dispute that § 7426(g) constitutes a waiver

of sovereign immunity from an award of interest. See Library of Congress

v. Shaw, 478 U.S. 310, 319 n.6 (1986) (listing § 7426(g) as a waiver of

immunity as to an award of interest), superseded in part by statute, Civil

Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. However, inso-

far as § 6621(a)(1) is concerned, that provision is not a waiver of immu-

nity from an award of interest. Rather, it governs the manner in which the

interest available on, among other things, a wrongful levy judgment is cal-

culated. We therefore decline to strictly construe § 6621(a)(1). See J.F.

Shea Co. v. United States, 754 F.2d 338, 340 (Fed. Cir. 1985) (holding

that the assertion of sovereign immunity is “irrelevant . . . where the dis-

pute concerns not whether interest runs against the United States but how

the interest is to be calculated.”).

CHEUNG v. UNITED STATES 13467

a levy can be understood as the imposition of a tax. See 26

U.S.C. § 6331(a) (“If any person liable to pay any tax neglects

or refuses to pay the same within 10 days after notice and

demand, it shall be lawful for the Secretary to collect such tax

. . . by levy . . . . If the Secretary makes a finding that the col-

lection of such tax is in jeopardy . . . collection thereof by

levy shall be lawful without regard to the 10-day period pro-

vided in this section.”); Black’s Law Dictionary 919 (8th ed.

2007) (defining levy as “[t]he imposition of a fine or tax; the

fine or tax so imposed.”); 26 U.S.C. § 6331(b) (The term

“levy” “includes the power of distraint and seizure by any

means.”). Thus, one who has been wrongfully levied can be

thought of as having been subject to an improper exaction.

See 26 C.F.R. § 301.7426-1(b) (“A levy is wrongful against

a person (other than the taxpayer against whom the assess-

ment giving rise to the levy is made), if . . . the levy is upon

property in which the taxpayer had no interest at the time the

lien arose or thereafter.”) However, the satisfaction of a levy

occurs upon the execution of the levy. See 26 U.S.C.

§ 6331(d) (outlining the procedural prerequisites for the impo-

sition of a levy generally). It is not the consequence of the

voluntary act of payment, which more aptly describes an

overpayment of tax.

That notwithstanding, in determining the appropriate

method of calculating the overpayment rate as it applies to a

wrongful levy judgment, it is not necessary to reach a conclu-

sion as to whether a wrongful levy is or is not an overpayment

of tax. Instead, we need only determine how Congress

intended to treat wrongful levy judgments when it subjected

them to the overpayment rate in § 6621(a)(1). As to this issue,

we conclude that the plain meaning of the statute controls.

[3] Section 7426(g) provides for the recovery of interest on

a wrongful levy judgment “at the overpayment rate described

in section 6621.” Section 6621 provides a straightforward

method for calculating the overpayment rate: in the case of a

corporation, the overpayment rate equals the federal short-

13468 CHEUNG v. UNITED STATES

term rate plus two percent, except “to the extent that an over-

payment of tax exceeds $10,000” the overpayment rate is the

federal short-term rate plus one half of one percent. 26 U.S.C.

§ 6621(a)(1). By subjecting wrongful levy judgments to the

overpayment rate as described in § 6621, Congress expressed

its intent to give effect to the whole of § 6621(a)(1) in calcu-

lating the overpayment rate, including the rate reduction artic-

ulated in § 6621(a)(1)’s flush language. That reduction can

only be given effect if a wrongful levy judgment is treated as

an overpayment of tax for purposes of calculating the over-

payment rate. Thus, in providing for the consideration of the

whole of § 6621 in determining the overpayment rate applica-

ble in the case of a wrongful levy judgment, Congress indi-

cated its intent to apply a one and a half point reduction in the

overpayment rate to the extent that a wrongful levy judgment

exceeds $10,000.

This conclusion is consistent with Congress’s application

of the overpayment rate in other contexts. 30 U.S.C. § 1721

governs the terms and conditions of oil and gas leases, includ-

ing the rate of interest owed on overpayments of royalties.

More specifically, § 1721(h) provides for the payment of

interest “on any overpayment . . . at the rate obtained by

applying the provisions of subparagraphs (A) and (B) of sec-

tion 6621(a)(1) of Title 26, but determined without regard to

the sentence following subparagraph (B) of section

6621(a)(1),” i.e., without regard to the flush language.

(emphasis added).

[4] In eliminating the application of § 6621(a)(1)’s flush

language, Congress expressed its intent to apply the overpay-

ment rate without regard to the reduction described there.

Congress thus elected not to treat overpayments of royalties

as overpayments of tax for purposes of calculating the over-

payment rate. Had Congress wanted to avoid the application

of § 6621(a)(1)’s flush language to wrongful levy judgments,

it could have employed similar language.

CHEUNG v. UNITED STATES 13469

The Company argues that any reliance on § 1721(h) as pro-

bative of Congress’s intent in this case is misplaced. Accord-

ing to the Company, because both § 1721(h) and § 6621 apply

to “overpayments,” it was necessary for Congress to explicitly

preclude the application of the flush language’s rate reduction

insofar as it intended to do so. Otherwise, the Company says,

§ 6621(a)(1)’s flush language would have triggered a reduc-

tion in the overpayment rate not because Congress elected to

treat overpayments of royalties like overpayments of tax by

subjecting overpayments of royalties to the overpayment rate,

but because an overpayment of royalty falls within the defini-

tion of an overpayment of tax.10 We disagree.

[5] There is no question that the overpayment of a royalty

is the result of an erroneous voluntary payment, whereas a

wrongful levy is executed by the government. Nonetheless, a

royalty payment represents the government’s share of the

profits from a lease, not a tax. See 30 U.S.C. § 1702(14)

(defining “royalty” as “any payment based on the value or

volume of production which is due to the United States . . .

on production of oil or gas from the Outer Continental Shelf,

Federal, or Indian lands, or any minimum royalty owed to the

United States . . . under any provision of a lease.”). Thus, the

overpayment of a royalty is no more an overpayment of tax

than a wrongful levy. As such, the flush language of

§ 6621(a)(1) would only apply to reduce the overpayment rate

insofar as Congress expressed its intent to treat an overpay-

ment of royalties like an overpayment of tax for purposes of

calculating the overpayment rate. Accordingly, we cannot

conclude that Congress’s motivation in explicitly precluding

10

The Company also asserts that the government is barred from citing

Congress’s reference to § 6621 in § 1721(h) in support of its argument on

appeal because it did not do so in the district court. However, as the gov-

ernment points out, “[w]here, as here, the question presented is one of law,

we consider it in light of ‘all relevant authority,’ regardless of whether

such authority was properly presented in the district court.” Ballaris v.

Wacker Siltronic, Corp., 370 F.3d 901, 908 (9th Cir. 2004) (quoting Elder

v. Holloway, 510 U.S. 510, 516 (1994)).

13470 CHEUNG v. UNITED STATES

the application of § 6621(a)(1)’s flush language in § 1721(h)

arose out of the fact that the flush language otherwise would

have applied, because an overpayment of royalty falls within

the plain meaning of “overpayment of tax.” Instead, it is more

likely that Congress explicitly precluded the application of

§ 6621’s flush language in § 1721(h) in order to avoid signal-

ing its intent to treat overpayments of royalties like overpay-

ments of tax.

The Company asserts that our decision in Flores v. United

States, 551 F.2d 1169 (9th Cir. 1977), counsels against

today’s holding. In Flores, we addressed the issue of which

party bears the burden of persuasion under § 7426 as to

whether a levy is wrongful. Id. at 1173-75. In the course of

holding that the government bears the burden, we noted that

“particular sections of the Internal Revenue Code, as they

apply to persons who are differently situated, serve different

purposes.” Id. at 1173. According to the Company, Flores

demands that we treat victims of wrongful levies differently

than those who overpay their taxes. The Company asserts that

those whose property is wrongfully levied are differently situ-

ated from those who overpay their taxes in that those that are

wrongfully levied have been victimized by a mistake of the

IRS and thus are entitled to interest at a higher rate.

We are mindful of our decision in Flores. And we agree

that in applying the Code we must take into account the fact

that different provisions serve different purposes insofar as

they are applied to differently situated persons. However, in

this case, Congress has clearly expressed its intent to treat

those whose property has been wrongfully levied similarly to

those who have overpaid their taxes, regardless of whatever

distinctions the Company may perceive as between the two.

Accordingly, we are bound to apply the statute as written. See

Texaco, Inc. v. United States, 528 F.3d 703, 710 (9th Cir.

2008) (“Once Congress has spoken, the court cannot revise a

statue to promote a more equitable consequence.”).

CHEUNG v. UNITED STATES 13471

Finally, the Company argues that the legislative history of

both § 7426 and § 6621 militates against our decision. We

need not reach the issue, however, because we conclude that

the plain meaning is dispositive. See Molski, 481 F.3d at 732

(“ ‘Where the statutory language is clear and consistent with

the statutory scheme at issue, the plain language of the statute

is conclusive and the judicial inquiry is at an end.’ ”) (quoting

Botosan, 216 F.3d at 831).

IV. CONCLUSION

[6] The district court’s calculation of the overpayment rate

was erroneous. The plain meaning of § 7426 and § 6621 com-

pel the conclusion that Congress intended to treat wrongful

levy judgments like overpayments of tax for purposes of cal-

culating the overpayment rate. Therefore, we reverse and

remand for proceedings consistent with this opinion.