USCA1 Opinion

June 3, 1993
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2280
ANDREW TEMPELMAN AND PRISCILLA TEMPELMAN,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
____________________

Andrew Tempelman and Priscilla Tempelman on brief pro se.

________________
___________________
Peter E. Papps, United States Attorney, James A. Bruton, Act
______________
________________
Assistant Attorney General, Gary R. Allen, William S. Estabrook,
_____________ _____________________
Doris D. Coles, Attorneys, Tax Division, Department of Justice,
_______________
brief for appellees.
____________________
____________________

Per Curiam.
___________

Andrew

and

taxpayers) filed a

pro se action

seeking

the Internal

to enjoin

collecting back

taxes.

concluding that the

Act, 26 U.S.C.

The

Priscilla

in federal district
Revenue Service

lower

suit was barred

7421(a).

Tempelman

court
by the

We agree with

(the
court

(IRS) from

denied

relief,

Anti-Injunction

this determination

and therefore affirm.

I.
The taxpayers own and operate a small inn and restaurant
in Milford, New Hampshire.

In 1990, the IRS served them with

notices of deficiency pursuant

to 26 U.S.C.

6212 claiming

that approximately $130,000 in taxes, interest and

penalties

were

taxpayers

owed for

the

years 1984

and

1985.1

The

thereafter filed a timely petition under 26 U.S.C.

redetermination
taxpayers

in

tax court.

On

and the IRS presented the

agreement calculating a
approximately

October 4,

interest.

1991,

the

court with a stipulated

total liability for

$35,000 plus

6213 for

those years

The tax

of

court judge

adopted this agreement in a decision dated November 27, 1991.

The taxpayers filed an

appeal from this decision on

1992, claiming inter alia

__________
IRS
their

that they had been coerced

and the tax court into signing the stipulation.

May 20,
by the
Because

notice of appeal was filed well past the 90-day period

prescribed

by Fed. R. App. P. 13(a), we dismissed the appeal

for lack of jurisdiction on September 1, 1992.

We thereafter

____________________
1. While the IRS also alleged deficiencies for the years
1983 and 1986-88, the instant case pertains only to the years
1984-85.

denied their motion for reconsideration and for permission to

file late.
Under 26

U.S.C.

6213(a),

the IRS is

prohibited from

making

any

assessment

or

collection efforts until

become final"--which
1992.

See
___

adopted by
agreed to
1991,

the

otherwise

7481(a).

court, however, the

assessments

taxpayers expressly

Accordingly, in December
for the

years

1984-85 in

Upon taxpayers'

failure to

that decision.

pay, the IRS in

August 1992 levied upon their

property.

filed a

notice of tax

Taxpayers responded

February 25,

In the stipulated decision

accordance with

bank account and

initiating

tax court "has

case occurred on

waive this restriction.

IRS made

or

the decision of the

in this

26 U.S.C.
the tax

levy

New Hampshire

lien against

their

by filing their complaint for

injunctive relief.
II.
The
enumerated

Anti-Injunction
exceptions,

Act

provides,

that "no

suit

for

restraining the assessment or collection of

maintained

in any court

7421(a).

In Enochs
______

(1962), the

by any

with

the purpose

26

v. Williams Packing Co., 370

______________________

provision, holding that a suit

of

any tax shall be

person ...."

Court fashioned an additional

certain

U.S.C.
U.S. 1

exception to this

for injunctive relief may lie

where (1) the taxpayer will suffer irreparable harm absent an

injunction, and (2)

it is clear that "under no circumstances

-3-

could the Government

ultimately prevail"

dispute.

accord, e.g., South Carolina v. Regan,

______ ____ _______________
_____

Id. at 7;
___

465 U.S. 367,

on the

374 (1984); Commissioner v.

____________

underlying

Shapiro, 424 U.S.

_______

614, 627 (1976); Bob Jones Univ. v. Simon, 416 U.S.

_______________
_____
(1974);

Lane v. United States,

____
_____________

cert. denied, 469 U.S.

____________
to
the

727 F.2d 18,

829 (1984).

invoke this exception, arguing

Enochs
______

criteria.

recommendations
that the
failed

of

20 (1st Cir.),

The taxpayers

show

that

circumstances

prevail.

correct.

The

here seek

that they satisfy both of

The district

court

(adopting

magistrate-judge) disagreed,

taxpayers had established irreparable

to

725, 737

the
This

Enochs Court
______

government

the

finding

harm but had

would

under

no

determination

is

plainly

elaborated

the

latter

on

requirement as follows:
[T]he question of whether the Government has a
chance of ultimately prevailing is to be determined
on the basis of the information available to it at
the time of suit.
Only if it is then apparent
that, under the most liberal view of the law and
facts, the United States cannot establish its
claim, may
the suit
for
an injunction
be
maintained.

370 U.S.

at 7.

In

attempting to meet this

McCarthy v. Marshall,
________
________

723 F.2d 1034,

the taxpayers advance two arguments.

they were coerced into
of

dismissal

opportunity

of
to

tabulations.

1040 (1st Cir.

1983),

First, they charge that

signing the stipulation, under threat

their

petition, without

examine
The

"heavy" burden,

the agreement

transcripts of

and

the tax

having
the

had

the

underlying

court proceeding

-4-

undermine

this

dismissal

arose--not because of

the

part of

taxpayers'

claim.2

the

IRS

They

or

the

reveal

that

the threat

of

any heavy-handed tactics on

court--but

because

of

the

inadequate bookkeeping and their unwillingness to

produce records.

Indeed, the court refrained from dismissing

the petition even while noting that the IRS was "entitled" to
such

relief.

taxpayers

Supp. App.

at 52.

Furthermore, although the

appeared pro se, the court arranged for them to be

assisted by an attorney from a local law school's tax clinic,

who

argued on their behalf.

which the agreement was

At

the close of the hearing at

announced, the taxpayers praised the

judge.
never

Id. at 42.
___
filed

After the judge's decision, the taxpayers

a motion

vacate or revise.

See
___

for

reconsideration or

Tax Court Rules 161, 162.

motion to
Any claim

of coercion or duress is, at the very least, far-fetched.

Second, the taxpayers complain
decision
working

issued, the

papers containing

stipulated agreement.
retain

IRS

those

that, once the tax court

attorney destroyed
the

the

personal

calculations underlying

They contend that

papers until

her

tax

the

she was required to

court decision

became

____________________
2. Because the district court dismissed the complaint prior
to service of process on the government, these transcripts
were not part of the record below. The IRS, having submitted
them in a supplemental appendix to this court, asks that we
take judicial notice thereof. This request is granted. See,
___
e.g., Fed. R. Evid. 201; Taino Lines, Inc. v. M/V Constance
____
_________________
_____________
Pan Atlantic, 982 F.2d 20, 22 n.8 (1st Cir. 1992); United
____________
______
States v. Berzon, 941 F.2d 8, 14 n.9 (1st Cir. 1991).
______
______
-5-

final.

They

argue

riddled with errors

since all "evidence"

that the

attorney's calculations

and omissions.
in support

And they

conclude that,

of the IRS'

claim has

been destroyed, the IRS has no chance of prevailing

This line
hardly

of reasoning is

surprising

that

personal working

papers

of the IRS' claim

would

be

been reached and

that back taxes are

taxpayers' underlying complaint

having

It is

Such papers are obviously not the central evidence

in support
the

now

thereon.

likewise unavailing.

disposed of once a stipulated agreement has

entered.

were

not

been

establishing

timely

"that

no

Government ultimately prevail."

And

of IRS miscalculations,

raised,

under

due.

falls

well

circumstances

short
could

of
the

We therefore agree with the

lower court that the Enochs exception is inapplicable.3

______
The

taxpayers' remaining arguments

dismissed.
one of

First, they seek,

assessment made
final.

in the alternative, to

the statutory exceptions to

the provision in

prior to

the tax court's

however,

invoke

the Anti-Injunction Act:

6213(a) permitting a court to

As mentioned,

statutory bar

can be more readily

the

enjoin any

decision becoming

taxpayers waived

on assessments being made prior

the

to that time.

____________________
3. Indeed, in light of the dismissal of the appeal from the
tax court ruling, it might well be argued that the government
already has prevailed. We need not decide, however, whether
the instant matter is moot or is barred on res judicata
____________
grounds, inasmuch as it is in any event without merit.

-6-

Moreover, the filing of

a notice of appeal operates

the assessment or collection

is filed

of a deficiency only if

with the tax court.

Court Rule 192.

See 26 U.S.C.
___

report

And

opportunities
objecting

to

to

the

the

correct

of authority

complaint.

ample

notice

taxpayers
those

to

of the
were

fact, granted

dismissal).

complaint's
afforded

shortcomings:

reconsider

We

was

The magistrate-

magistrate-judge's report,

court, in

reinstated its

whether

the

district court

dismissal (the
then

of the

court

to service of process

the court's lack

provided

deficiencies.

asking

Yet

from the face

judge's

7485(a); Tax

that the district

their suit sua sponte prior

__________

on the government.
apparent

a bond

No such bond was filed here.

Second, the taxpayers complain

dismissed

to stay

first

and

two
in

later in

its judgment

of

reconsideration and
thus need

not decide

the court's sua sponte dismissal was error.

__________

Even if

it were, any such error was, under the circumstances, plainly

harmless.

See, e.g.,
___ ____

Purvis v. Ponte, 929 F.2d

______
_____

822, 826-27

(1st Cir. 1991) (per curiam).4

____________________
4.

The taxpayers

also rely

on the Shapiro Court's holding

_______
that, before the applicability of the Enochs exception can be
______
ascertained, the government has the obligation to disclose
the factual basis for its assessments. See 424 U.S. at 626___
27.
That holding is clearly inapposite.
The Shapiro case
_______
involved a jeopardy assessment made without any opportunity
for a prompt post-seizure inquiry into the basis for the IRS'
claim.
Here, by contrast, the taxpayers have had a full
opportunity to contest the IRS' claim in tax court.
-7-

Affirmed. The motion to amend pleading and the motion

________________________________________________________
to show cause are denied.
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