U.S. v. JIM

TJOFLAT, Circuit Judge:

In 1988, Congress enacted the Indian Gaming Revenue Act ("IGRA"), Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. § 2701 et seq.), "to protect the Indian gaming industry from corruption and to provide for extensive federal oversight of all but the most rudimentary forms of Indian gaming," Tamiami Partners, Ltd. By & Through Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of Fla., 63 F.3d 1030, 1033 (11th Cir. 1995). IGRA permits an Indian tribe to engage in gaming and to distribute the revenue from gaming activities to its members on a per capita basis — that is, an equal payment to each member. 25 U.S.C. § 2710(b)(1), (b)(3). When an Indian tribe decides to distribute the revenue from gaming activities, however, the distributions are subject to federal taxation. Id. § 2710(b)(3)(D). The Indian tribe, as a consequence, must report the distributions, notify its members of their tax liability, and withhold the taxes due on them. Id. § 2710(b)(3)(D); 26 U.S.C. §§ 3402(r)(1), 6041(a).

In the case before us, an Indian tribe engaged in gaming activities. Each quarter, the tribe used the revenue of the gaming activities to fund per capita distributions to its members. But the tribe disregarded its tax obligations on these distributions. It neither reported the distributions nor withheld taxes on them.

In 2001, a member of the tribe received distributions on behalf of herself, her husband, and her two daughters. She neither filed a tax return for the 2001 tax year nor paid federal taxes on the distributions. The Government, after catching wind of the tribe's distribution program, assessed taxes, penalties, and interest against the member for the distributions. The member did not pay the assessments.

As a result, the Government brought suit to reduce the tax assessments to a judgment in district court. The tribe moved to intervene as of right1 because the case required a determination as to the taxability of the distributions, which could impair its distribution program and subject it to reporting and withholding requirements. Its motion was granted, and the tribe filed an answer and affirmative defenses.

In the proceedings below, the member and the tribe raised as an affirmative defense that the distributions were exempt from taxation as "Indian general welfare benefit[s]" under the Tribal General Welfare Exclusion Act ("GWEA"), Pub. L. No. 113-168, 128 Stat. 1883 (2014) (codified at 26 U.S.C. § 139E). GWEA excludes from federal taxation "any payment made or services provided to or on behalf of a member of an Indian tribe ... pursuant to an Indian tribal government program."2 26 U.S.C. § 139E(b). The Government moved for summary judgment on this defense. On summary judgment, the District Court determined that "the Tribal GWE Act was not meant to supplant the IGRA; that is, per capita distributions of gaming revenue remain taxable income, even if these distributions arguably promote the general welfare of a tribe."

In this appeal, the member and the tribe contend that the District Court erred in concluding that the exemption for Indian general welfare benefits did not apply to the distributions.3 The tribe alone asserts that the District Court erroneously upheld tax penalties against the member and incorrectly attributed to the member the distributions of her husband and daughters. Lastly, the tribe argues that the District Court erred by entering judgment against it as an intervenor.

We affirm the ruling of the District Court in each of these matters. The distribution payments cannot qualify as Indian general welfare benefits under GWEA because Congress specifically subjected such distributions to federal taxation in IGRA. The member has waived any arguments as to penalties or the amount assessed against her, and the tribe lacks a legal interest in those issues. The District Court did not err in entering judgment against the tribe because the tribe intervened as of right and the Government sought to establish its obligation to withhold taxes on the distributions.

I.

A.

In 1990, the Miccosukee Indian Tribe of Florida ("Tribe"), an Indian tribe recognized under the Indian Reorganization Act of 1934, Pub. L. No. 73-383, 48 Stat. 984 (1934), began to operate a gaming facility called Miccosukee Indian Bingo and Gaming ("MIBG") on its reservation lands in southern Florida.

Since 1984, the Tribe has provided its members quarterly payments to help them live on the reservation without outside assistance.4 To fund these distributions, the Tribe taxes the "gross sales" made on the reservation as well as the rents from land and oil leases. The Tribe collects this tax revenue in what it calls the "non-taxable distributable revenue" account ("NTDR"). Each quarter, the Tribe gathers and approves a distribution from the NTDR. It divides the NTDR's balance by the number of tribal members and then writes a check to each member for her proportional share.

In 1995, when the Tribe began gaming activities, it imposed a "gross receipts tax" specifically on MIBG.5 The Tribe also collects this gaming tax in the NTDR for distribution. In theory, therefore, the NTDR contains revenue from both gaming and non-gaming sources, all of which the Tribe distributes to its members.

The reality is that the lion's share of the revenue for the distributions comes from MIBG. In the financial year ending on September 30, 2001, MIBG contributed $32,103,681 into the NTDR; the Tribe distributed $32,268,000 to its members that year. This means that $164,319 originated from other sources. Similarly, in 2002, MIBG paid $37,462,023 into the NTDR; the Tribe distributed a total of $36,335,300 that year, leaving an excess of $1,126,723 in gaming revenue. As the numbers reveal, MIBG contributed the vast majority of the funds for distribution. Despite this fact, the Tribe neither reported the distributions nor withheld federal taxes on them.

In 2001, Sally Jim, a member of the Tribe, received and cashed distribution checks on behalf of herself, her husband, and her two children.6 The distributions totaled $272,000, which amounted to $68,000 per person. She also earned $25,990 through her employment at the tribal healthcare center in that year. Sally Jim neither filed a tax return in 2001 nor paid federal taxes on the distributions.

In September, 2004, because of Sally Jim's failure to file a tax return, the Government assessed taxes, penalties, and interest against her for the 2001 tax year. On December 31, 2012, after becoming aware of the distributions Sally Jim received from the Tribe, the Government assessed additional taxes, penalties, and interest against her. Sally Jim did not pay the assessments.

B.

On July 1, 2014, the Government sought to reduce the assessments to a judgment in the District Court. In its one-count complaint, the Government alleged that Sally Jim failed to pay taxes and penalties of $267,237.18 for 2001.7 The Tribe moved to intervene as of right under Federal Rule of Civil Procedure 24(a).8 The District Court granted the motion after determining that a ruling could subject the Tribe to withholding and reporting requirements and affect its general welfare program.

Sally Jim and the Tribe answered the complaint and raised affirmative defenses. They alleged that Sally Jim did not owe taxes on the distributions because they were exempt from taxation. Their principal argument was that the distributions qualified as "Indian general welfare benefit[s]" under GWEA and therefore could not be taxed.9 26 U.S.C. § 139E(a). In case this argument failed, Sally Jim alleged that the Government wrongly included the distributions of her household members in the assessment against her. She also alleged that she should not be subject to penalties because she relied "upon the advice of Tribal officials as well as the representatives of the Bureau of Indian Affairs."

The Government moved the District Court for summary judgment, arguing that GWEA did not exempt the payments from taxation.10 Specifically, the Government argued that GWEA is inapplicable to the distributions because Congress, through IGRA, specifically intended to tax distributions of gaming revenue. Sally Jim and the Tribe, in a joint response, countered that a dispute of material fact existed on whether the distributions met the requirements to qualify as Indian general welfare benefits under GWEA.

The District Court granted summary judgment in part. It held that pursuant to IGRA the "per capita distributions of gaming revenue remain taxable income, even if these distributions arguably promote the general welfare of a tribe."11 The District Court, however, denied summary judgment as to how much of the distributions came from sources other than gaming, which might render them eligible for an exemption as Indian general welfare benefits.

With respect to the tax assessments against Sally Jim, the District Court concluded that a genuine dispute of material fact existed regarding the extent of Sally Jim's tax liability because some of the checks she received were "made out to her husband and her daughter." On tax penalties, the District Court held that Sally Jim had not demonstrated reasonable cause for failing to timely file her tax return as to her salary.12 But the District Court denied summary judgment on whether Sally Jim was subject to penalties for failing to report and pay taxes on the tribal distributions because a dispute of material fact existed as to whether she reasonably relied on the advice of an attorney or statements made during tribal meetings.

The parties consented to a bench trial, which took place August 11-16, 2016. In its opening statement and closing argument, the Government stressed that the distributions came solely from the gross receipts tax on MIBG, a gaming facility, and thus that GWEA could not apply to any portion of them. As to the amount of the tax assessments against Sally Jim, the Government contended that Sally Jim "had discretion" to spend the distributions the Tribe made to the members of her household and therefore that she must pay federal taxes on them. Lastly, the Government asserted that Sally Jim lacked reasonable cause for failing to pay taxes on the distributions because she never received advice from a tax expert.

Sally Jim and the Tribe, in their opening statements and closing arguments, made no effort to establish how much of the distributions came from a source other than gaming activities.13 They insisted that Sally Jim could not be liable for the full assessment amount and that she reasonably relied on the advice of tribal officials and Dexter Lehtinen, the Tribe's general counsel in 2001.

After careful consideration of the evidence and arguments of the parties, the District Court set forth its findings of facts and conclusions of law in an order on August 19, 2016. The District Court reiterated that "the Tribe's distributions, derived from gaming proceeds, are not exempted from federal taxation as general welfare payments or income from the land." Because neither Sally Jim nor the Tribe "present[ed] any evidence identifying a specific percentage of the distributions derived from non-gaming sources," the District Court held that "no exemption from taxation applies to the income at issue in this case." Moving to whether the Government correctly included the distributions of Sally Jim's household members in the assessment against her, the District Court held that she "exercised sufficient control over the full amount of tribal distributions she received" to be liable for taxes on them.14 Lastly, the District Court addressed whether the Government could impose penalties on Sally Jim for failure to file a tax return and to pay taxes on the distributions. The District Court ruled that Sally Jim lacked reasonable cause for this failure because she admittedly forgot to file the tax return and could not have reasonably relied on the statements of tribal leaders or Dexter Lehtinen.15

The District Court concluded that "final judgment will be entered ... in favor of the United States of America and against Sally Jim." It instructed the Government "to submit a proposed order of final judgment." Complying with this instruction, the Government proposed language for an order entering judgment:

The District Court adopted the Government's proposed language with minor alterations — and thus entered judgment against both Sally Jim and the Tribe and specified that Sally Jim was liable for the unpaid federal income taxes, penalties, and interest.

A few weeks later, the Tribe moved the District Court to alter and amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). The Tribe contended that the District Court erred by entering judgment against it. A district court, the Tribe contended, "cannot enter a judgment against a party when nothing during the course of the litigation or the trial indicated that judgment would be entered against that party." Because the record does not explain the "basis" of the judgment, the Tribe continued, the final judgment is "likely to lead to confusion regarding who is liable for the amount due and what impact, if any, the judgment has on the Tribe."

The District Court denied the Tribe's motion to alter and amend the judgment. In seeking to intervene, the District Court reasoned, the Tribe "expressly stated it had an interest in the ... determination of whether its distribution payments were subject to federal taxation." At summary judgment, the District Court rejected Sally Jim and the Tribe's affirmative defenses and held that the distributions were subject to federal taxation — a holding that subjected the Tribe to reporting and withholding requirements on the distributions. The District Court therefore ruled that the circumstances warranted entering judgment against the Tribe, an intervenor as of right with an interest at stake.16

Sally Jim and the Tribe filed notices of appeal, challenging the District Court's order granting the Government partial summary judgment, its findings of fact and conclusions of law, and its final judgment. The Tribe also appealed the denial of its motion to alter and amend the judgment.

II.

In an attempt to avoid federal income taxation on the distributions, Sally Jim and the Tribe primarily raise one argument on appeal as to the tax status of the distributions.17 They argue that the distributions qualify as "Indian general welfare benefit[s]" and therefore are not subject to federal income taxation. 26 U.S.C. § 139E(a).18 This argument presents a question of statutory interpretation: whether GWEA in effect amended IGRA. We review this question de novo. United States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).

IGRA, enacted in 1988, imposes federal income taxes on the per capita payments an Indian tribe distributes from the net revenue of Indian gaming activities. 25 U.S.C. § 2710(b)(3). It therefore imposes taxation in "a very specific situation," Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). GWEA, enacted in 2014,19 provides a tax exemption "of general application"20 for Indian general welfare benefits,21 without regard to the source of the income. 26 U.S.C. § 139E(b).

"Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of the enactment." Morton, 417 U.S. at 550-51, 94 S.Ct. at 2483; see also Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 1992-93, 48 L.Ed.2d 540 (1976) ("It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum."). In enacting GWEA, Congress expressed no intent to release the per capita payments of gaming revenue from federal taxation.22 Congress spoke clearly when it imposed federal income taxation on per capita payments derived from gaming revenue. If Congress intended GWEA to undo this arrangement, it knew the words to do so. It chose not to use them. See Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1217 (11th Cir. 2015) ("Where Congress knows how to say something but chooses not to, its silence is controlling." (quotation omitted)). We therefore hold that the exemption for Indian general welfare benefits, 26 U.S.C. § 139E(a), is inapplicable to the per capita payments an Indian tribe makes from gaming revenue. The District Court did not err in holding that GWEA does not exempt the distributions of MIBG's revenue from federal taxation.23

III.

Following trial, the District Court held that Sally Jim was subject to tax penalties for failing to timely file a tax return and that she exercised sufficient control over the distributions of her husband and children to be assessed taxes on them. The Tribe, in its initial brief on appeal, contended that the District Court erred in reaching these conclusions. Sally Jim, however, did not challenge the District Court's rulings on these matters in her brief.

"Under our caselaw, a party seeking to raise a claim or issue on appeal must plainly and prominently so indicate. Otherwise, the issue — even if properly preserved at trial — will be considered abandoned." United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003); see also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) ("A party fails to adequately `brief' a claim when he does not `plainly and prominently' raise it, `for instance by devoting a discrete section of his argument to those claims.'" (quoting Cole v. U.S. Attorney Gen., 712 F.3d 517, 530 (11th Cir. 2013))). Accordingly, this Court refuses "to consider issues raised for the first time in an appellant's reply brief." United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004).

In her brief on appeal, Sally Jim challenged only the District Court's determination that the distributions were subject to federal income taxation. In other words, Sally Jim bet the farm on the argument that the distributions were not taxable.24 She chose not to raise arguments as to penalties or the extent of her tax liability if we decided, as we do, that the distributions are subject to federal income taxation.25 We therefore need not address these issues because they have been waived. The District Court's rulings on them stand.

IV.

Lastly, the Tribe contends that the District Court erred by entering judgment against it and challenges the District Court's order denying its motion to amend the judgment. "The decision to alter or amend judgment is committed to the sound discretion of the district judge and will not be overturned on appeal absent an abuse of discretion." Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985). We disagree with the Tribe.

It is hornbook law that an intervenor "is treated as ... an original party and has equal standing with the original parties." 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1920 (3d ed. 2007).26 Just as an original party, an intervenor is "vulnerable to complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party." United States v. Oregon, 657 F.2d 1009, 1014 (8th Cir. 1981) (quotation omitted). A district court may therefore enter judgment against an intervenor, the same as any original party.

Here, the Tribe intervened as of right regarding the tax status of its distribution payments. As the Tribe argued in its motion to intervene, the determination whether the distributions were subject to federal taxation would affect "the Tribe's ability to preserve the integrity of its general welfare system and governmental functions." If the distributions were determined to be taxable, the Tribe would have legal obligations in the form of reporting and withholding requirements.

As an intervenor, the Tribe entered the lawsuit with full knowledge of the Government's claims, and asserted affirmative defenses that were resolved by the District Court. It argued each motion, attended depositions, gave an opening statement and closing argument, examined witnesses, and produced evidence and testimony. In other words, the Tribe not only had the status of an original party but acted like one. The Tribe was also aware that, in its proposed conclusions of law, the Government asked the District Court to declare that the Tribe's distributions were subject to federal income taxation and therefore that the Tribe had an obligation to withhold taxes on them. As a result, the District Court did not abuse its discretion in refusing to amend the judgment.27

AFFIRMED.