Anesthesiologist Niamatali the Non-Filer

[Joey Smith]

U.S. v. NIAMATALI

UNITED STATES OF AMERICA, Department of Justice, Plaintiff-Appellee,
v.
GORDON RAMZAN NIAMATALI, Defendant-Appellant.

No. 09-40837, Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Filed: July 26, 2010.

Before: WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM.[ 1 ]

The United States filed suit against Gordon Niamatali to recover unpaid taxes. After a bench trial, Niamatali was ordered to pay substantial sum s. On appeal, he challenges the precise calculation of his income tax liability, penalties, and additions. We AFFIRM the judgment except as to one of the penalties. We VACATE the judgment for a recalculation of a specific penalty in light of the Government's admission of error regarding it.

In 2000 and 2001, Niamatali was a practicing anesthesiologist working as an independent contractor and also as an employee in McAllen, Texas. After Niamatali failed to file federal income tax returns in both years, the Internal Revenue Service prepared substitute tax returns on his behalf.

Over the ensuing years, the IRS issued a statutory notice of deficiency and sent Niamatali several notices related to the deficiency and its intent to levy. In 2004, the IRS issued a Form 4340 for each tax year, assessing the liabilities, additions, and interests. The IRS also recorded a notice of federal tax lien with the county clerk in Hidalgo County, Texas. Subsequently, Niamatali filed tax returns for the tax years of 2000 and 2001. He reported no tax liability, attaching a brief to the 2000 tax return explaining his position. Through a levy, the IRS obtained a portion of the balance due from Niamatali.

On May 8, 2007, the United States brought suit in federal district court seeking to reduce to judgment the federal income tax assessments against Niamatali and to foreclose the federal tax liens against two parcels of his property. During a two-day bench trial, Niamatali advanced several tax protestor arguments and also challenged the calculation of taxes, penalties, and additions imposed. Both Niamatali and the Government offered witnesses testifying to the amount Niamatali owed the Government.

The court ruled for the Government. It entered a judgment establishing Niamatali's tax liabilities, penalties, and additions, and authorizing the Government to foreclose on the federal tax liens against his property.

Proceeding pro se on appeal, Niamatali argues that the district court erred in ordering statutory penalties and in accepting the Government's assessment and accounting of payments due instead of his accounting.

On appeal after a bench trial, we review findings of fact for clear error and legal conclusions de novo. Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009). "A factual finding is not clearly erroneous as long as it is plausible in the light of the record read as a whole." Id. (citation and quotation marks omitted).

Tax assessments by the IRS are presumed correct; the taxpayer bears the burden of overcoming that presumption by a preponderance of the evidence. United States v. Lochamy, 724 F.2d 494, 497-98 (5th Cir. 1984). The Government supported its assessments for 2000 and 2001 with Forms 4340. "IRS Form 4340 constitutes valid evidence of a taxpayer's assessed liabilities and the IRS's notice thereof." Perez v. United States, 312 F.3d 191, 195 (5th Cir. 2002) (citation omitted). The Government also offered a transcript of information reported to the IRS by third parties. At trial, an IRS compliance officer and an IRS reports analyst testified. Niamatali testified on his own behalf and introduced as a witness the tax consultant who prepared his tax returns.

Upon review of the testimony, we conclude it was not clearly erroneous for the court to reject Niamatali's calculations. Niamatali's conclusional assertions do not overcome the presumption of correctness to which the IRS's assessments are entitled.

Moreover, we are not convinced by Niamatali's contention that the Form 4340 was insufficient because the Government did not produce a Form 23C assessment certificate. The Form 4340 provided Niamatali with the information required. See Treas. Reg. § 301.6203-1.

On appeal, the Government concedes error in its assessing the failure-topay penalty under I.R.C. § 6651(a)(2).

We AFFIRM the judgment in all respects except for the assessment of the Section 6651(a)(2) penalty as to each tax year. As to that penalty, we VACATE and REMAND to the district court for further proceedings.

[LPC]

In 2000 and 2001, Niamatali was a practicing anesthesiologist working as an independent contractor and also as an employee in McAllen, Texas.

According to a 2009 article in the New Yorker, McAllen, Texas, has the second highest health-care costs per person in the United States.

And this doesn't seem to have anything to do with demographics, or the quality of health care, but occurs because the medical profession in McAllen is adept at producing procedures. When you have a health system that pays doctors for procedures, rather than good health or good results, the result can be a large number of procedures, rather than good health or good results.

It becomes a cultural issue. If the medical community decides it's okay to wring every last dollar out of the system for personal profit, then the population served by that medical community sees large expenditures for health care that is no better than the care received by other populations.

So the residence of this tax-cheating doctor might not be a coincidence. Doctors who place profit over patient care would also seem more likely to place personal profit over compliance with tax laws. If McAllen really represents a concentration of doctors who place profit over patient care, then it might also represent a concentration of doctors likely to cheat on their taxes.