Thalia Kelley Considine, and Charles Ray Considine v. United States

Considine appeals from summary judgment entered in favor of the Government in his tax refund suit. He contends that the district court erred in holding that his prior conviction for filing a false return collaterally estopped him from contesting liability for a civil fraud penalty. We affirm, although for reasons different from those relied on by the district court.

FACTS

Charles and Thalia Considine filed a joint tax return for 1965 showing $8,701 interest income. In 1972, Charles Considine was convicted of willfully filing false tax returns for 1965-67 and 1969, in violation of I.R.C. § 7206(1). The indictment charged and the trial court found that Considine had omitted $57,131 interest income in 1965. This court affirmed. United States v. Considine, 502 F.2d. 246 (9th Cir. 1973), cert. denied, 416 U.S. 970 , 94 S.Ct. 1992 , 40 L.Ed.2d 558 (1974). The Commissioner later issued notices of deficiency for 1965, including civil fraud penalties totaling $30,-433. The Considines paid the deficiencies and sued for a refund.

The Government moved for summary judgment, contending that the prior conviction estopped Considine from contesting any elements of the civil fraud penalty or…