Robert Rowen

156 T.C. No. 8

UNITED STATES TAX COURT

ROBERT ROWEN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18083-18P. Filed March 30, 2021.

P failed to pay assessed tax liabilities totaling at least $474,846

relating to tax years 1994, 1996, 1997, and 2003 through 2007. R

certified that P has a “seriously delinquent tax debt” within the

meaning of I.R.C. sec. 7345(b). P petitioned this Court to determine

that R’s certification was erroneous pursuant to I.R.C. sec. 7345(e)(1).

P moved for summary judgment on the basis that

I.R.C. sec. 7345 violates the Due Process Clause of the Fifth

Amendment to the Constitution because it infringes the right to

international travel. P also alleged that I.R.C. sec. 7345 violates his

human rights as expressed in the Universal Declaration of Human

Rights (UDHR).

R filed a cross-motion for summary judgment alleging that

(1) I.R.C. sec. 7345 is constitutional; (2) the UDHR does not create

actionable claims in Federal courts; (3) P’s debt remains enforceable;

and (4) R did not err in certifying P’s tax liabilities as a seriously

delinquent tax debt.

Served 03/30/21

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Held: Because I.R.C. sec. 7345 merely provides for the

certification of certain tax-related facts and does not restrict in any

manner the right to international travel, it cannot run afoul of the Due

Process Clause of the Fifth Amendment.

Held, further, for the same reason, I.R.C. sec. 7345 cannot

violate the UDHR.

Held, further, P has abandoned his claim that I.R.C. sec. 7345

deprives him of an opportunity for a meaningful hearing within the

meaning of the Due Process Clause of the Fifth Amendment.

Held, further, R has established that he is entitled to judgment

as a matter of law that no portion of P’s seriously delinquent tax debt

is unenforceable by operation of the period of limitations on

collection.

Held, further, R did not err in certifying that P has a seriously

delinquent tax debt within the meaning of I.R.C. sec. 7345(b).

Sandeep Singh, for petitioner.

Lisa P. Lafferty, John S. Hitt, and Douglas S. Polsky, for respondent.

OPINION

TORO, Judge: For more than two decades, petitioner, Robert Rowen, failed

to pay his Federal tax as required by law. The Internal Revenue Service (“IRS”)

attempted to collect the outstanding amounts through its usual means--sending

demands, filing liens, attempting to levy on assets--all without much success. In

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2018, when Dr. Rowen’s outstanding tax balance was close to $500,000, the

Commissioner of Internal Revenue turned to a new tool in his collection toolbox--

section 7345.1

Enacted in 2015, section 7345 authorizes the Commissioner to send to the

Secretary of the Treasury a certification that an individual has a “seriously

delinquent tax debt.” The Secretary of the Treasury in turn must transmit that

certification to the Secretary of State “for action with respect to denial, revocation,

or limitation of a passport pursuant to section 32101 of the * * * [Fixing America’s

Surface Transportation Act (‘FAST Act’), Pub. L. No. 114-94, 129 Stat. at 1729

(2015)].” Sec. 7345(a).

Applying his authority under section 7345, the Commissioner certified that

Dr. Rowen has a seriously delinquent tax debt. That certification was sent to the

Secretary of State. According to the record before us, the Secretary of State has

not undertaken any action to revoke Dr. Rowen’s passport.

After receiving notification of the Commissioner’s certification, Dr. Rowen

filed a petition in our Court under section 7345(e). His motion for summary

judgment followed. In it, Dr. Rowen asks us to determine that the Commissioner’s

1

Unless otherwise indicated, all section references are to the Internal

Revenue Code (the “Code”) in effect at all relevant times, and all Rule references

are to the Tax Court Rules of Practice and Procedure. We round all monetary

amounts to the nearest dollar.

-4-

certification was erroneous. Dr. Rowen offers two principal arguments in support

of his request. First, he maintains that section 7345 is unconstitutional because it

prohibits international travel in violation of the Due Process Clause of the Fifth

Amendment to the Constitution. Second, he argues that section 7345 violates his

human rights under the Universal Declaration of Human Rights (“UDHR”), G.A.

Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948). The Commissioner has filed a

cross-motion for summary judgment, defending the statute and maintaining that the

certification was proper. Finding no merit in Dr. Rowen’s arguments and

otherwise perceiving no error in the Commissioner’s certification, we will sustain

the certification.

Background

The following background statement is drawn from the parties’ pleadings

and motion papers, including the administrative record, as supplemented by the

parties, which was attached to the Commissioner’s motion for summary judgment.

The relevant facts in the background statement are summarized solely for the

purpose of resolving the pending motions and are not in dispute. Dr. Rowen

resided in California when he petitioned this Court.

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A. Dr. Rowen’s Professional Background and International Travel

Dr. Rowen, a U.S. citizen, is a medical doctor licensed to practice in

California. He frequently travels to developing countries to offer medical services

free of charge to populations that would not otherwise have access to adequate

medical care. He also has family members in Singapore and mainland China,

where he travels for personal reasons.

B. Dr. Rowen’s Failure To Comply With His Federal Tax Obligations

For more than two decades, Dr. Rowen has repeatedly failed to file Federal

income tax returns. As relevant to this case, Dr. Rowen first failed to file a timely

income tax return for tax year 1994. In April 1997, Dr. Rowen was indicted on,

and pleaded guilty to, one count of corruptly endeavoring to impede an IRS

investigation of his activities. As required by his plea agreement, Dr. Rowen filed

delinquent income tax returns for 1994 and 1996 on March 15, 1998, and timely

filed his 1997 income tax return on April 15, 1998. The IRS issued to Dr. Rowen a

notice of deficiency for tax year 1994. Dr. Rowen did not petition this Court for

redetermination, and the 1994 deficiency was assessed on May 22, 2000. On

April 23, 2000, Dr. Rowen submitted amended returns for tax years 1996 and

1997. The IRS processed Dr. Rowen’s amended returns and assessed the amounts

reported on those returns on June 19 and July 31, 2000, respectively.

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In an effort to collect the assessed amounts, on June 18, 2001, the IRS issued

to Dr. Rowen a notice of intent to levy relating to tax years 1994, 1996, and 1997.

The notice explained Dr. Rowen’s right to seek a hearing before the IRS Office of

Appeals (“IRS Appeals”) (whose determination would have been reviewable by

this Court pursuant to section 6330), but Dr. Rowen did not avail himself of that

opportunity. Instead, on June 21, 2001, Dr. Rowen filed for bankruptcy, seeking

discharge of his Federal income tax liabilities for tax years 1992 through 1997. On

March 5, 2003, the bankruptcy court held that Dr. Rowen willfully failed to file his

tax returns and failed to pay his income tax liabilities for tax years 1992 through

1997. The bankruptcy court refused to discharge the liabilities.

Despite his prior plea agreement, Dr. Rowen again stopped filing income tax

returns starting with 2003. It was only after the IRS generated a substitute for

return for tax year 2007 in July 2009 that Dr. Rowen submitted returns for tax

years 2003 through 2007. But Dr. Rowen failed to pay the amounts due reflected

in those returns, so the IRS filed notices of Federal tax lien (“NFTLs”) and mailed

notices of filing the NFTLs to Dr. Rowen. The IRS also issued notices of intent to

levy against Dr. Rowen relating to his unpaid liabilities for tax years 2003 through

2007.2 In response, Dr. Rowen timely filed a request for a hearing with IRS

2

The first NFTL was filed on October 29, 2010, and related to Dr. Rowen’s

(continued...)

-7-

Appeals pursuant to sections 6320 and 6330 relating to the collection of his income

tax liabilities for 2003 through 2007. On November 30, 2012, IRS Appeals issued

to Dr. Rowen a Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, sustaining the NFTL filings and the proposed levies

relating to tax years 2003 through 2007.

On December 27, 2012, Dr. Rowen timely petitioned this Court at docket

No. 31141-12L for review of the notice of determination. On October 28, 2014,

we entered a stipulated decision sustaining IRS Appeals’ determination in full.

C. Certification Under Section 7345

Dr. Rowen has not fully paid the assessed income tax liabilities for tax years

1994, 1996, 1997, and 2003 through 2007. To facilitate collection of the tax owed

and acting under the newly granted authority of section 7345, on or about

July 16, 2018, the Commissioner certified Dr. Rowen as an individual owing a

seriously delinquent tax debt. The certification was sent to the State Department

2

(...continued)

2003 through 2006 income tax liabilities. Notice of the filing of the first NFTL

was provided to Dr. Rowen on November 2, 2010. The second NFTL was filed on

December 31, 2010, and related to his 2007 income tax liability. Notice of the

filing of the second NFTL was provided to Dr. Rowen on January 6, 2011. The

first notice of intent to levy was issued on November 19, 2010, and related to

Dr. Rowen’s 2003 through 2006 income tax liabilities. The second notice of intent

to levy was issued on February 2, 2011, and related to Dr. Rowen’s 2007 income

tax liability.

-8-

for action with respect to denial, revocation, or limitation of Dr. Rowen’s passport,

as provided in section 7345(a), and the Commissioner sent Dr. Rowen a notice

CP508C, Notice of Certification of Your Seriously Delinquent Federal Tax Debt to

the State Department, as required by section 7345(d). In that notice, the

Commissioner stated that Dr. Rowen owed $474,847 in Federal income tax for tax

years 1994, 1996, 1997, and 2003 through 2007.

D. Dr. Rowen’s Passport

Dr. Rowen held a valid passport when the certification was made. That

passport expires in November 2024. Although the State Department was

empowered to revoke Dr. Rowen’s passport after receiving the certification, the

State Department, as of August 20, 2020, had not informed Dr. Rowen of any

adverse action with respect to his existing passport.3

E. Proceedings in This Court

On September 12, 2018, Dr. Rowen filed a petition in our Court under

section 7345(e)(1). The cross-motions for summary judgment now before us

followed in due course.

3

By order dated August 5, 2020, the Court ordered the parties to supplement

the administrative record with respect to petitioner’s passport. On

August 21, 2020, the parties filed a stipulation of facts that updated and

supplemented the administrative record in accordance with the Court’s order.

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Discussion

I. Scope and Standard of Review Under Section 7345

Summary judgment expedites litigation and avoids costly, time-consuming,

and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681

(1988). In cases that are subject to a de novo scope of review, this Court may grant

summary judgment when there is no genuine dispute as to any material fact and a

decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In

cases that are decided on the administrative record (record rule cases), this Court

ordinarily decides the issues raised by the parties by reviewing the administrative

record using a summary adjudication procedure. See Van Bemmelen v.

Commissioner, 155 T.C. ___, ___ (slip op. at 24-26) (Aug. 27, 2020)

(summarizing the relationship between scope and standard of review and the

standard of summary adjudication).

This is the first occasion on which this Court has considered the merits of a

certification pursuant to section 7345. See Ruesch v. Commissioner, 154 T.C. 289

(2020) (considering section 7345 but concluding that the taxpayer’s challenges to

the merits of the certification were moot). Although a court reaching a decision on

the merits ordinarily must consider both the scope of review (that is, what evidence

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the court will consider) and the standard of review (that is, how the court will

evaluate the evidence it considers), see Kasper v. Commissioner, 150 T.C. 8, 14

(2018), we need not do so here. As to the scope of review, there is no dispute

between the parties with respect to the evidence we should consider. As to the

standard of review, as we explain below, our decision would be the same whether

we reviewed the Commissioner’s certification de novo or for abuse of discretion.

Accordingly, we leave for another day a decision on the scope and standard of

review under section 7345(e)(1).

II. FAST Act Section 32101

We turn now to FAST Act section 32101 in general and section 7345 in

particular.

A. Structure of FAST Act Section 32101

Congress enacted section 7345 as part of FAST Act section 32101. FAST

Act section 32101 included nine subsections, seven addressing operative rules and

two addressing housekeeping matters.4

4

On the housekeeping front, section 32101(h) of the Fixing America’s

Surface Transportation Act (“FAST Act”), Pub. L. No. 114-94, 129 Stat. at 1733

(2015), amended the table of sections for subchapter D of chapter 75 of the Code to

reflect the addition of section 7345, and FAST Act section 32101(i), 129 Stat.

at 1733, set out the effective date of the other provisions of that section.

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Of the seven operative subsections, four--subsections (a), (b), (c), and

(d)--amended the Code and provided rules governing the conduct of the

Commissioner and the Secretary of the Treasury. Of primary relevance here,

FAST Act section 32101(a) added section 7345 as a new section of the Code.5

The remaining three operative subsections--subsections (e), (f), and

(g)--provided rules applicable to the Secretary of State and were subsequently

codified in title 22 of the United States Code.

We consider some of these provisions in greater detail below.

B. Section 7345

Section 7345(a) provides:

If the Secretary [of the Treasury] receives certification by the

Commissioner of Internal Revenue that an individual has a seriously

delinquent tax debt, the Secretary [of the Treasury] shall transmit such

certification to the Secretary of State for action with respect to denial,

revocation, or limitation of a passport pursuant to section 32101 of the

FAST Act.

Section 7345(b)(1) generally defines a “seriously delinquent tax debt” as an

“unpaid, legally enforceable Federal tax liability” that “has been assessed,” “is

5

FAST Act section 32101(b), 129 Stat. at 1731, amended the notice

requirements under sections 6320(a)(3) and 6331(d)(4). FAST Act

section 32101(c), 129 Stat. at 1731, amended section 6103(k) to permit the

Secretary of the Treasury to disclose to the Secretary of State certain return

information. FAST Act section 32101(d), 129 Stat. at 1732, amended

section 7508(a) to make the rule of that section applicable to the certification of a

seriously delinquent tax debt.

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greater than” $51,000,6 for which “a notice of lien has been filed pursuant to

section 6323 and the administrative rights under section 6320 * * * have been

exhausted or have lapsed, or * * * levy is made pursuant to section 6331.”

Section 7345(b)(2) excludes from the definition of “seriously delinquent tax debt”

any debt that is “being paid in a timely manner pursuant to an agreement * * *

under section 6159 or 7122” and any debt for which “collection is suspended * * *

because a due process hearing under section 6330 is requested or pending, or * * *

because” relief under section 6015 is requested.7 Section 7345(d) requires the

Commissioner to contemporaneously notify a taxpayer of any certification under

subsection (a).

Section 7345(c) provides rules for reversing a certification. It requires the

Commissioner to “notify the Secretary (and the Secretary shall subsequently notify

the Secretary of State) if such certification is found to be erroneous [by a court

under section 7345(e) as described below] or if the debt with respect to such

6

Section 7345(b)(1)(B) requires that the liability be greater than $50,000.

This amount is adjusted for inflation beginning in tax years after 2016.

Sec. 7345(f). The adjusted amount for tax year 2018 was $51,000.

7

In implementing section 7345, the Commissioner has established certain

discretionary exclusions from certification for debts that would otherwise qualify

under the section 7345 definition. See Internal Revenue Manual pt. 5.1.12.27.4

(Dec. 20, 2017). Neither the exclusions in section 7345(b)(2) nor the discretionary

exclusions are at issue, so we need not discuss them here.

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certification is fully satisfied or ceases to be a seriously delinquent tax debt by

reason of subsection (b)(2).” As with a certification, the Commissioner must

notify the taxpayer of a reversal of a certification. Sec. 7345(d).

The Court’s jurisdiction to consider this case is found in section 7345(e),

which provides as follows:

SEC. 7345(e). Judicial Review of Certification.--

(1) In general.--After the Commissioner notifies an

individual under subsection (d), the taxpayer may bring a civil

action against the United States in a district court of the United

States, or against the Commissioner in the Tax Court, to

determine whether the certification was erroneous or whether

the Commissioner has failed to reverse the certification. For

purposes of the preceding sentence, the court first acquiring

jurisdiction over such an action shall have sole jurisdiction.

(2) Determination.--If the court determines that such

certification was erroneous, then the court may order the

Secretary to notify the Secretary of State that such certification

was erroneous.

Section 7345(e) does not set any deadline for filing the civil action it

authorizes. Once the Commissioner notifies a taxpayer that a certification under

section 7345(a) has been made, the taxpayer may challenge that certification in a

civil action filed either in this Court or in a Federal District Court. The court first

acquiring jurisdiction over a certification challenge has sole jurisdiction over that

action. Sec. 7345(e)(1).

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C. FAST Act Section 32101(e)

As just described, under section 7345(a), a certification that an individual

has a seriously delinquent tax debt must be transmitted to the Secretary of State

“for action with respect to denial, revocation, or limitation of a passport pursuant to

section 32101 of the FAST Act.”

The relevant action by the Secretary of State is authorized by FAST Act

section 32101(e), codified as subsection (e) of 22 U.S.C. section 2714a (2018),

which provides:

(e) Authority To Deny or Revoke Passport.--

(1) Denial.--

(A) In general.--Except as provided under subparagraph

(B), upon receiving a certification described in section 7345 of

title 26 from the Secretary of the Treasury, the Secretary of

State shall not issue a passport to any individual who has a

seriously delinquent tax debt described in such section.

(B) Emergency and humanitarian situations.--

Notwithstanding subparagraph (A), the Secretary of State may

issue a passport, in emergency circumstances or for

humanitarian reasons, to an individual described in such

subparagraph.

(2) Revocation.--

(A) In general.--The Secretary of State may revoke a

passport previously issued to any individual described in

paragraph (1)(A).

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(B) Limitation for return to United States.--If the

Secretary of State decides to revoke a passport under

subparagraph (A), the Secretary of State, before revocation,

may--

(i) limit a previously issued passport only for

return travel to the United States; or

(ii) issue a limited passport that only permits return

travel to the United States.

(3) Hold harmless.--The Secretary of the Treasury, the

Secretary of State, and any of their designees shall not be liable to an

individual for any action with respect to a certification by the

Commissioner of Internal Revenue under section 7345 of title 26.

In accordance with that statute, once the Secretary of State receives notice of

the certification, the Secretary of State is required (absent emergency or

humanitarian considerations) to deny a passport (or renewal of a passport) to a

seriously delinquent taxpayer and is permitted to revoke any passport previously

issued to such person. See 84 Fed. Reg. 67184, 67184-67186 (Dec. 9, 2019) (to be

codified at 22 C.F.R. pt. 51).

Under FAST Act section 32101(g), if the Secretary of State receives notice

from the Secretary of the Treasury that an individual no longer has a seriously

delinquent tax debt, the Secretary of State must remove the certification from the

individual’s record.8

8

The other operative subsection that applies to the Secretary of State, FAST

(continued...)

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D. Summary of Relevant FAST Act Provisions

To summarize the foregoing, the FAST Act authorizes different Government

actors to make different decisions and carry out different actions. Pursuant to

section 7345, the Commissioner is charged with determining whether a seriously

delinquent tax debt exists, making a certification of that fact, and notifying the

taxpayer of that certification. Also pursuant to section 7345, the Secretary of the

Treasury is charged with transmitting the certification made by the Commissioner

to the Secretary of State. By contrast, pursuant to FAST Act section 32101(e), the

Secretary of State acts with respect to the passport of an individual who has been

certified to have a seriously delinquent tax debt. The Secretary of State is

permitted, in his discretion, to revoke a passport that has already been issued. And

he is prohibited from issuing a new passport or renewing an expiring one, although

the prohibition is not absolute. He retains discretion to issue a new passport or

renew an expiring one “in emergency circumstances or for humanitarian reasons.”

FAST Act sec. 32101(e)(1)(B).

In short, the actions of the Commissioner, the Secretary of the Treasury, and

the Secretary of State are governed by separate and distinct rules, which impose

8

(...continued)

Act section 32101(f), 129 Stat. at 1732, authorizes the Secretary of State to revoke

or deny a passport to an individual without a valid Social Security number.

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different responsibilities on each and grant them varying degrees of discretion in

carrying out those responsibilities.

III. Dr. Rowen’s Motion for Summary Judgment

Dr. Rowen claims he is entitled to judgment as a matter of law. He argues

that section 7345 is unconstitutional because it violates the Fifth Amendment’s

Due Process Clause. In addition, he advances a theory (not set out in the petition)

that section 7345 violates his right to travel under the UDHR. We address each of

Dr. Rowen’s arguments below.

We note as an initial matter that section 7345(e)(1) authorizes us to

“determine whether the certification was erroneous.” In general, an action is

“erroneous” if it is “[i]ncorrect” or “inconsistent with the law or the facts.”

Black’s Law Dictionary 659 (10th ed. 2014); see also Merriam-Webster’s

Collegiate Dictionary 425 (11th ed. 2014) (defining “erroneous” as “containing or

characterized by error: MISTAKEN”); cf. Kasper v. Commissioner, 150 T.C. at 23

(examining whether an agency’s decision was “based on an erroneous view of the

law or a clearly erroneous assessment of the facts” (quoting Fargo v.

Commissioner, 447 F.3d 706, 709 (9th Cir. 2006), aff’g T.C. Memo. 2004-13)).

Of course, if section 7345 were unconstitutional, any certification made under that

section would be inconsistent with law and therefore erroneous. See, e.g., Norton

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v. Shelby Cty., 118 U.S. 425, 442 (1886) (“An unconstitutional act is not a law; it

confers no rights; it imposes no duties; it affords no protection; it creates no office;

it is, in legal contemplation, as inoperative as though it had never been passed.”).

We therefore have authority under section 7345(e) to review Dr. Rowen’s

arguments. See, e.g., Battat v. Commissioner, 148 T.C. 32, 46 (2017) (noting that

this Court, like all Federal courts, may adjudicate constitutional questions that arise

within its jurisdiction and collecting authorities); see also, e.g., Conard v.

Commissioner, 154 T.C. 96, 97 (2020) (reviewing and upholding the

constitutionality of section 72(t) in a deficiency case).

A. Dr. Rowen’s Fifth Amendment Argument

Dr. Rowen claims that “I.R.C. § 7345 is unconstitutional on its face because

it prohibits international travel--which is a fundamental right enshrined in the Fifth

Amendment of the United States Constitution.” Petitioner’s Motion for Summary

Judgment, para. 18. The claim has no merit.

The plain text of section 7345 imposes no prohibition on international

travel.9 Section 7345 merely provides a process by which the Commissioner may

9

Although the caption of section 7345 reads “Revocation or Denial of

Passport in Case of Certain Tax Delinquencies,” the caption does not have the

force of law, see sec. 7806(b) (providing that no “descriptive matter relating to the

content of this title [shall] be given any legal effect”), and cannot cloud the plain

words of the statute, see, e.g., United States v. Reorganized CF & I Fabricators of

(continued...)

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certify to the Secretary of the Treasury the existence of a seriously delinquent tax

debt and the Secretary of the Treasury in turn transmits that certification to the

Secretary of State.10 Section 7345 expressly leaves all passport-related decisions

for “action” by the Secretary of State. See sec. 7345(a). Any such action is based

on the authority granted to the Secretary of State pursuant to FAST Act

section 32101(e), which must be exercised in the judgment and discretion of the

Secretary of State. Section 7345 (which, as already discussed, was enacted by

FAST Act section 32101(a)) simply does not authorize any passport-related

decision and therefore does not prohibit international travel. Indeed, the

Commissioner may well not know whether a particular taxpayer has a valid

passport or intends to seek one when the Commissioner makes his certification.

9

(...continued)

Utah, Inc., 518 U.S. 213, 222-223 (1996) (applying section 7806(b) in interpreting

section 4971 and accepting the Government’s disavowal of reliance on a title

heading); N.Y. & Presbyterian Hosp. v. United States, 881 F.3d 877, 886 n.13

(Fed. Cir. 2018) (concluding that the Court of Federal Claims erred by relying on

the title of section 3202(b) rather than the text of the statute because the Code

“explicitly provides that its titles have no legal effect”); see also Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 222 (2012)

(observing that “a title or heading should never be allowed to override the plain

words of a text”).

10

Although the statute establishes the process of certification as described

above, we have recognized that, in practice, the Secretary of the Treasury and the

Commissioner have condensed the two steps into one. See Ruesch v.

Commissioner, 154 T.C. 289, 292 n.3 (2020).

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Dr. Rowen also claims that section 7345 “giv[es] the Commissioner the

power to order the revocation or denial of the passport of a U.S. citizen * * * [and]

to prohibit U.S. nationals from leaving the country,” see Petitioner’s Motion for

Summary Judgment, at para. 17, and that “the Commissioner has exercised his

power to revoke Dr. Rowen’s passport, prohibiting him from leaving the country--

regardless of the reason for his travels,” id. at para. 36. Neither contention is

correct.

First, section 7345 gives the Commissioner no power to order the revocation

or denial of a passport of a U.S. citizen. As we just discussed, section 7345 simply

authorizes the Commissioner to certify the existence of a seriously delinquent tax

debt based on the presence of certain tax-related facts (for example, an outstanding

liability for an assessed tax in excess of a specified amount, the existence of a lien

or levy, and the absence of proceedings before IRS Appeals). A provision other

than section 7345 (FAST Act section 32101(e)) gives a different government actor

(the Secretary of State) power to act with respect to a passport after receiving a

certification made by the Commissioner. FAST Act section 32101(e) requires the

Secretary of State to exercise his own judgment in determining whether to revoke a

passport and whether to issue a new passport (or renew an existing one) for

emergency or humanitarian reasons. In short, only the Secretary of State, not the

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Commissioner, may revoke or deny a passport, and the Secretary of State’s

authority does not derive from section 7345.

Second, as far as the record shows, Dr. Rowen’s passport remains in effect.

Not only has the Commissioner (who has no such power) not revoked it, but even

the Secretary of State (the relevant Government actor with authority to act with

respect to Dr. Rowen’s passport) has not taken any adverse action against

Dr. Rowen.

Dr. Rowen spends considerable effort in his motion attempting to show that

the right to international travel is a fundamental right and that its infringement is

subject to review under strict scrutiny. But, as the foregoing discussion makes

clear, we need not decide these issues here. Regardless of the nature of the right to

travel internationally (fundamental or not) and regardless of the standard of review

under the Constitution (strict scrutiny, intermediate scrutiny, or rational basis), see,

e.g., Eunique v. Powell, 302 F.3d 971 (9th Cir. 2002) (reflecting differing opinions

on this issue), a statutory provision (section 7345) that merely provides for the

certification of certain tax-related facts and does not restrict in any manner the

right to international travel cannot run afoul of the Due Process Clause of the Fifth

Amendment.

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The constitutionality of the authority granted to the Secretary of State by

FAST Act section 32101(e) is not before us, and we express no view on that issue.

See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450

(2008) (“[It is a] fundamental principle of judicial restraint that courts should

neither ‘anticipate a question of constitutional law[’] * * * nor ‘formulate a rule of

constitutional law broader than is required by the precise facts to which it is to be

applied.’” (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-347

(1936) (Brandeis, J., concurring))).

B. Dr. Rowen’s UDHR Argument

Dr. Rowen also maintains that section 7345 violates his right to travel under

the UDHR. Dr. Rowen observes that, under Article 13 of the UDHR,

“(1) [e]veryone has the right to freedom of movement and residence within the

borders of each state” and “(2) [e]veryone has the right to leave any country,

including his own, and to return to his country.” Petitioner’s Motion for Summary

Judgment, at para. 52. Dr. Rowen further observes that the Supreme Court “has

reasoned that * * * [the UDHR] does not ‘of its own force impose obligations as a

matter of international law’ nor does it ‘create obligations enforceable in the

federal courts.’” Id. at para. 53 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692,

734-735 (2004)). Yet, Dr. Rowen argues that “the Supreme Court [has] stated the

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UDHR does ‘bind the United States as a matter of international law.’” Id. (quoting

Sosa, 542 U.S. at 735). This latter statement is simply wrong. The Supreme Court

used the language Dr. Rowen quotes not with respect to the UDHR but with

respect to the International Covenant on Civil and Political Rights (the

“Covenant”). Sosa, 542 U.S. at 735 (“[A]lthough the Covenant does bind the

United States as a matter of international law, the United States ratified the

Covenant on the express understanding that it was not self-executing and so did not

itself create obligations enforceable in the federal courts.” (Emphasis added.))

Regardless of Dr. Rowen’s misreading of Sosa, however, as with his

constitutional argument concerning section 7345, we need not decide here the

scope of the UDHR or its applicability in the United States. Whatever that scope

and whatever the UDHR’s applicability in the United States, section 7345 imposes

no limit on the right to travel. Thus, the UDHR cannot provide any grounds for

invalidating the Commissioner’s certification under section 7345.

IV. The Commissioner’s Cross-Motion for Summary Judgment

In his cross-motion for summary judgment, the Commissioner maintains that

his certification was proper and that he is entitled to judgment as a matter of law.

As we explain below, we agree.

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A. Dr. Rowen’s Procedural Due Process Challenge and Statute of

Limitations Claim

We begin by considering two arguments that Dr. Rowen raised in his

petition but chose not to advance in his motion for summary judgment.

Specifically, Dr. Rowen alleged in his petition that section 7345 deprives him of

procedural due process by “certifying his debt for passport revocation” without

certain specified procedural safeguards. Dr. Rowen also asserted in his petition

that the period of limitations may have run as to certain unidentified portions of his

underlying tax debt. The Commissioner must defeat these claims in order to

prevail on his motion for summary judgment, and we now analyze them in turn.

1. Dr. Rowen’s Procedural Due Process Claim

Dr. Rowen’s petition alleged that the Commissioner failed to provide

adequate notice and opportunity for a hearing before he certified Dr. Rowen’s debt.

But Dr. Rowen did not include that argument in his motion for summary judgment.

And although the Commissioner affirmatively alleged in his motion for summary

judgment that Dr. Rowen was not deprived of procedural due process, Dr. Rowen

did not respond to that argument. We conclude, therefore, that Dr. Rowen has

abandoned any procedural due process claim and that the Commissioner is entitled

to judgment as a matter of law on this issue. E.g., United States v. TDC Mgmt.

Corp., 827 F.3d 1127, 1130 (D.C. Cir. 2016) (concluding an argument was

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“forfeit” because the party that had advanced it did “not further develop it (or even

mention it again) after * * * [a] ‘single, conclusory statement’” (quoting Bryant v.

Gates, 532 F.3d 888, 898 (D.C. Cir. 2008))); Schneider v. Kissinger, 412 F.3d 190,

200 n.1 (D.C. Cir. 2005) (“It is not enough merely to mention a possible argument

in the most skeletal way, leaving the court to do counsel’s work[.] * * * [A] litigant

has an obligation to spell out its arguments squarely and distinctly, or else forever

hold its peace.” (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990))); accord Masias v. EPA, 906 F.3d 1069, 1077 (D.C. Cir. 2018) (same);

United States v. Alonso, 48 F.3d 1536, 1544 (9th Cir. 1995) (same).

2. Dr. Rowen’s Statute of Limitations Claim

Dr. Rowen also alleged in his petition that some portion of his liabilities may

be unenforceable, but again he did not raise this argument in his motion for

summary judgment. The Commissioner’s cross-motion for summary judgment

argues that, while Dr. Rowen has made a vague allegation that the period of

limitations may apply, he has not identified any “specific component of his

seriously delinquent tax debt” for which collection may be barred by the period of

limitations. Dr. Rowen offered no response to this argument. As with respect to

Dr. Rowen’s procedural due process claim, we could rely on Dr. Rowen’s

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abandonment of the argument and decide the issue in favor of the Commissioner

on that basis alone.

But there is more. The expiration of a period of limitations is an affirmative

defense, and “the party raising it must specifically plead it and carry the burden of

proving its applicability.” Amesbury Apartments, Ltd. v. Commissioner, 95 T.C.

227, 240 (1990). Dr. Rowen has made no effort on this front. Moreover, even if a

portion of the tax debt at issue here were barred by the period of limitations on

collection, unless that portion reduces Dr. Rowen’s balance below $51,000, it

would not affect the correctness of the Commissioner’s certification. Again,

neither Dr. Rowen’s pleadings nor his summary judgment motion provides any

clue as to the amount of his tax debt that is no longer collectible.

Finally, the administrative record confirms that there is no basis for

Dr. Rowen’s limitations period speculation. The administrative record includes

certified Forms 4340, Certificate of Assessments, Payments, and Other Specified

Matters,11 for Dr. Rowen’s tax years 1994, 1996, 1997, and 2003 through 2007.

11

A Form 4340 is a certified record of assessments relating to a particular

taxpayer for a particular tax year. As a certified record, it is “presumptive evidence

that a valid assessment of tax has been made” and “where the taxpayer can point to

no evidence of any irregularity * * * the presumption of a valid assessment remains

intact.” Lunsford v. Commissioner, 117 T.C. 183, 187-188 (2001); see also Buaiz

v. United States, 521 F. Supp. 2d 93, 96 (D.D.C. 2007) (“A certified transcript

(Form 4340) reflecting an assessment is presumptive proof of the taxpayer’s

(continued...)

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These and other documentation in the record show that the period of limitations on

collection remains open for all relevant years.

Based on the foregoing, we conclude that the Commissioner is entitled to a

ruling in his favor with respect to Dr. Rowen’s limitations claim.

B. No Error in Certification of Seriously Delinquent Tax Debt

With Dr. Rowen’s constitutional objections and the preliminary matters out

of the way, we turn next to the specific requirements of section 7345 and

“determine whether the certification was erroneous.” Sec. 7345(e)(1). As noted

above, generally, an action is “erroneous” if it is “inconsistent with the law or the

facts.” Black’s Law Dictionary 659 (10th ed. 2014). We therefore consider

whether the requirements of the statute were satisfied in Dr. Rowen’s case. (We

note that Dr. Rowen offers no argument to the contrary.)

When the Commissioner made the section 7345 certification, Dr. Rowen

owed at least $474,847 relating to tax years 1994, 1996, 1997, and 2003 through

2007.12 For all years at issue, the IRS issued to Dr. Rowen notices of Federal tax

lien filing or notices of intent to levy. Dr. Rowen had an opportunity to seek

11

(...continued)

liability and establishes the Government’s prima facie case.” (citing Brounstein v.

United States, 979 F.2d 952, 954 (3d Cir. 1992))).

12

In general, interest continues to run on a tax debt until it is paid.

Sec. 6601.

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review in this Court for all years at issue, and he in fact did seek review for tax

years 2003 through 2007. This Court sustained the Commissioner’s

determinations for those years. For all other years, Dr. Rowen’s right to such

review in this Court has lapsed. There is nothing in the record to prove that

Dr. Rowen has entered into an agreement to pay his liabilities pursuant to either

section 6159 or section 7122 or requested relief under section 6015. Taken

together, these facts establish that Dr. Rowen falls squarely within the definition,

and outside the exceptions, set forth in section 7345(b) for a taxpayer owing a

seriously delinquent tax debt. Consequently, we conclude that the Commissioner

did not err in certifying Dr. Rowen’s seriously delinquent tax debt.

Because the record supports the Commissioner’s certification of Dr. Rowen

as owing a seriously delinquent tax debt within the meaning of section 7345(b), we

conclude that the Commissioner is entitled to summary judgment.

V. Conclusion

In light of the discussion above, we will deny Dr. Rowen’s motion for

summary judgment and grant the Commissioner’s cross-motion for summary

judgment.

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To reflect the foregoing,

An appropriate order and decision

will be entered.

Reviewed by the Court.

FOLEY, GALE, GUSTAFSON, PARIS, MORRISON, KERRIGAN,

BUCH, NEGA, PUGH, ASHFORD, URDA, COPELAND, JONES, GREAVES,

MARSHALL, and WEILER, JJ., agree with this opinion of the Court.

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MARVEL, J., concurring: The opinion of the Court decides the issues

raised in the motions for summary judgment by focusing on the unique facts and

the literal arguments presented by the parties. I concur in the result--particularly

given that no adverse action with respect to Dr. Rowen’s passport has been taken

yet as a result of the section 7345 certification. I write separately to point out that

the opinion of the Court does not foreclose a constitutional challenge, in a future

case with appropriate facts and squarely presented arguments, to the entire tax

collection mechanism created by the Fixing America’s Surface Transportation Act

(FAST Act), Pub. L. No. 114-94, sec. 32101, 129 Stat. at 1729, pursuant to the

jurisdiction granted in section 7345(e)(1).

Congress enacted section 7345 as one part of the interdepartmental tax

collection mechanism created by FAST Act sec. 32101. That interdepartmental tax

collection mechanism comprises two parts: (1) certification of a taxpayer’s

seriously delinquent tax debt under section 7345 and (2) an adverse passport action

that can take the form of either a discretionary revocation of an existing passport or

the mandatory denial of a passport application or renewal. Certification has no

other function than to open the door to an adverse passport action, and an adverse

passport action cannot occur unless and until the certification of a taxpayer’s

seriously delinquent tax debt.

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Only one provision of FAST Act sec. 32101 authorizes judicial review that

waives sovereign immunity with respect to the tax collection mechanism it creates:

section 7345(e). Section 7345(e)(1) confers jurisdiction on this Court and the

District Courts to “determine whether the certification was erroneous”, and it

provides that this Court or the appropriate District Court shall exercise “sole

jurisdiction” over a taxpayer’s claims relating to certification. Congress

immunized the Secretary of Treasury and the Secretary of State from any liability

relating to their actions under FAST Act sec. 32101. FAST Act sec. 32101(e)(3)

(codified at 22 U.S.C. sec. 2714a(e)(3) (2018)).

Dr. Rowen raised issues challenging the constitutionality of FAST Act sec.

32101 in substance but phrased them as challenges to section 7345. The opinion of

the Court has chosen to analyze and decide those issues with respect to section

7345 only. Because Dr. Rowen’s arguments are not a model of precision, I agree

that the approach taken in the opinion of the Court is reasonable. Dr. Rowen is the

master of his claims, and it is fair to hold him to his words.

The structure and wording of FAST Act sec. 32101 suggests, however, that a

question remains regarding the scope of the jurisdictional grant in section 7345(e).

If the tax collection mechanism of FAST Act sec. 32101 results in an adverse

passport action such as the revocation of an existing passport or the refusal to

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renew a passport, a constitutional challenge to the entire tax collection mechanism

of FAST Act sec. 32101 is likely; and the arguments by the affected taxpayer about

the impairment of his right to international travel are not so easily avoided.1

Because the opinion of the Court has treated Dr. Rowen’s constitutional

challenge as one directed only to section 7345 and because Dr. Rowen’s passport

has not yet been revoked, the opinion of the Court should be read narrowly and

1

In fact, similar arguments have been made in cases where an adverse

passport action has already occurred and those claims are pending in other courts.

See Jones v. Mnuchin, No. 21-10816 (11th Cir. filed Mar. 8, 2021); see also Maehr

v. U.S. Dep’t of State, No. 20-1124 (10th Cir. filed Mar. 26, 2020). In at least one

of those cases the Department of Justice has been consistent at both the trial level

and the appellate level that sec. 7345(e) provides the applicable waiver of

sovereign immunity--even for constitutional challenges--arguing that if the statute

were unconstitutional, then the certification would be “erroneous” within the

meaning of sec. 7345(e). See United States’ Partial Objection to Magistrate’s

Report and Recommendation at 2, Maehr v. U.S. State Dep’t, No. 1:18-cv-02948

(D. Colo. filed Oct. 10, 2019) (“This entire case arose because of 26 U.S.C.

§ 7345, in the Internal Revenue Code, and § 7345(e) provides a waiver. * * * If the

regime were unconstitutional, * * * certification would presumably be improper or

illegal, i.e., ‘erroneous.’”); Brief for the Appellee at 5, Maehr v. U.S. Dep’t of

State, No. 20-1124 (10th Cir. filed July 22, 2020) (“The Government stands by its

position below that the District Court had jurisdiction under 28 U.S.C. § 1331 and

that I.R.C. § 7345(e) provided the applicable waiver of sovereign immunity.”); see

also Defendants’ Consolidated Reply in Support of Defendants’ Motion for

Summary Judgment and Response to Plaintiff’s Cross-Motion for Summary

Judgment at 17-24, Jones v. Mnuchin, No. 1:19-cv-00222 (S.D. Ga. filed July 1,

2020) (arguing the merits of the taxpayer’s substantive due process challenge to

the certification regime in a case filed pursuant to sec. 7345(e) and further for the

dismissal of all named officials as defendants on the grounds that the only proper

party to the suit is the United States pursuant to the terms of the applicable waiver

of sovereign immunity found in sec. 7345(e)(1)).

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does not foreclose a broader constitutional challenge to FAST Act sec. 32101 in an

appropriate case brought under section 7345(e).