In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-2029 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

RICHARD E. WITKEMPER and ELLEN F. WITKEMPER, 

Defendants-Appellants. 

____________________ 

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:18-cv-00873 — James R. Sweeney II, Judge. 

____________________ 

ARGUED JANUARY 11, 2022 — DECIDED FEBRUARY 28, 2022 

____________________ 

Before EASTERBROOK, SCUDDER, and KIRSCH, Circuit Judges. 

SCUDDER, Circuit Judge. This case began when Richard Witkemper, the owner of a small business, failed to withhold federal payroll taxes from his employees’ wages. The failure 

caught up to him when the United States sued him and his 

wife to collect the unpaid taxes and related penalties. A bench 

trial ended in the government’s favor, and the Witkempers 

now appeal the district court’s determination that the government’s collection efforts fell within the prescribed statute of 
2 No. 21-2029 

limitations. This issue presented is not close, and the Witkempers’ counsel never should have pressed the point on appeal. 

We affirm.

I 

A 

Richard Witkemper was the president and sole shareholder of Maximum Spindle Utilization, Inc., a small manufacturing company in southern Indiana. The company had 

employees, but from 2004 to 2006 never complied with its obligation to withhold and remit federal income and insurance 

contribution taxes—so-called FICA taxes. 

Maximum Spindle eventually went bankrupt. And because it could not fully collect the company’s unpaid taxes 

during the bankruptcy proceedings, the IRS turned its attention to Richard Witkemper. In February 2008 the Service 

lodged an assessment totaling $385,705.54 and recorded a notice of a federal tax lien at the same time. 

Witkemper seemed to respond to these developments, at 

least at first, by expressing a desire to settle with the IRS. In 

July 2008 he sent the IRS a signed Offer in Compromise—

effectively a settlement offer. The next month, the Service 

accepted the Offer and the Witkempers’ accompanying $150 

filing fee. And soon after, Witkemper began making $500 

payments, the required monthly minimum under the 

compromise. But apparently Witkemper fell on hard times or 

otherwise had second thoughts about making additional 

payments and sought to rescind the settlement. In February 

2009, after the settlement had been in effect only 205 days, the 

IRS approved Witkemper’s request to withdraw the Offer in 

Compromise. 
No. 21-2029 3

Things only turned for the worse from there. Likely to 

evade enforcement of the federal tax liens, Witkemper then 

set in motion certain property transfers. To start, he and his 

wife purported to transfer their interest in their family home 

to their children. But after a series of subsequent transfers, the 

property ended up back with the Witkempers. In another 

sequence of transactions, Richard Witkemper transferred a 

commercial property interest he had to his wife. She 

eventually sold that property at a profit of $202,931.01, which 

she deposited into her checking account and used to pay 

personal expenses. Neither property transfer was made in 

exchange for any consideration, and the IRS viewed both 

transactions as essentially fraudulent conveyances. 

By March 2018 the IRS ran out of patience and sued both 

Richard and Ellen Witkemper in federal court in southern 

Indiana to recover proceeds from the fraudulent property 

transfers and the unpaid FICA taxes and related penalties. 

The case proceeded to a one-day bench trial in October 2020. 

The district court ruled in the government’s favor.

At trial, the Witkempers had no response to the merits of 

the government’s position on the unpaid FICA taxes and related penalties, or for that matter on the challenged property 

transfers. Without a substantive defense, they turned to procedure and sought to challenge the timeliness of the government’s collection and related notification actions. 

First, the Witkempers argued that the government could 

not prove that its initial assessment of the FICA tax penalties

fell within the deadline prescribed by Congress. They backed 

the contention solely by pointing to what they viewed as unreliable government records containing various clerical errors.
4 No. 21-2029 

Second, the Witkempers claimed that because the government filed its federal complaint on March 16, 2018—more 

than 10 years after it assessed the FICA recovery penalties—

the lawsuit was outside the applicable statute of limitations. 

And while an active Offer in Compromise would typically toll 

that 10-year period, the Witkempers argued that the government was not entitled to an extension of 205 days—the 

amount of time the Offer in Compromise had been in effect—

because there was never an Offer in effect. Indeed, the Witkempers insisted that the Offer in Compromise on file with 

the IRS reflected forged signatures. And, as best we can tell, 

Richard Witkemper advanced this position without contesting that he had made payments pursuant to the terms and 

conditions of the Offer in Compromise. 

The district court found none of this persuasive. In a 

lengthy opinion replete with careful factual findings, the 

district court concluded that each of the government’s efforts

to collect—both in assessing penalties and filing suit against 

the Witkempers—were timely. From there the district court 

saw no merit to the Witkempers’ claims that the government’s 

paperwork was rife with forgery. In the end, the district court 

entered judgment in the government’s favor in the amount of 

$385,705.54. 

The Witkempers now appeal.

B 

We have no trouble affirming the district court’s ruling for 

the IRS. The government’s proof of unpaid FICA taxes and 

related penalties, to say nothing of the fraudulent property 

conveyances, was overwhelming. Indeed, we have a hard 

time seeing why the Witkempers chose to go to trial. The 
No. 21-2029 5

district court’s opinion shows that the government’s case 

against them was open and shut. 

What most concerns us is how the Witkempers have 

approached their appeal. In raising two primary arguments, 

they proceed as if the bench trial never happened. Even more, 

they have paid no attention to the controlling—and 

deferential—standard under which we review the district 

court’s findings of fact. 

First, as to the initial assessment, the Witkempers argue on 

appeal, as they did at trial, that the government cannot prove 

it assessed penalties on February 18, 2008. They allege that the 

IRS’s Certificates of Assessment are unreliable and 

fraudulent, given what appear to be typographic errors on at 

least one document. But these small clerical errors, as the 

district court explained, fall well short of showing the 

government documents lack authenticity or are unreliable. 

Though there may be some small inconsistencies in the 

Certificates of Assessment, the Witkempers point to no 

evidence that calls into question the date of the original 

assessment. In fact, aside from the Certificates of Assessment, 

there was other unchallenged evidence presented at trial that 

corroborated the February 18 assessment date.

Second, despite the Witkempers’ insistence to the contrary, 

we see no issue with the government’s timeliness in filing this 

lawsuit. The Witkempers are right that a 10-year statute of 

limitations applies to suits to recover penalties and that the 

relevant time to sue tolls upon the government’s acceptance 

of an Offer in Compromise. See 26 U.S.C. §§ 6502(a); 

6331(i)(5), 6331(k)(1)(A). But those observations do little to 

help the Witkempers. The evidentiary record contained more 

than enough to support the district court’s finding that 
6 No. 21-2029 

Richard Witkemper signed and submitted an Offer in Compromise and that the government received and accepted that 

Offer. The government pointed out that Witkemper, despite 

professing to have not signed the settlement, acknowledged 

much of the other handwriting on the very same Offer was 

his. And the government entered into evidence hundreds of 

uncontested examples of his signature on other documents. 

Even more, despite claiming he never signed the Offer, Witkemper does not dispute that he submitted the many hundreds of dollars in payments and fees associated with it.

There is no way on this evidentiary record to say we are 

“left with a definite and firm conviction that a mistake has 

been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 

(1985) (quoting United States v. United States Gypsum Co., 333 

U.S. 364, 395 (1948)). Based on the overwhelming evidence

presented at trial, the district court was well within bounds in 

assessing the credibility of and rejecting Witkemper’s testimony that he did not sign the document. See Morisch v. United 

States, 653 F.3d 522, 529 (7th Cir. 2011) (“The credibility determinations that a judge renders as the finder of fact command 

a high degree of deference.”) (quoting Gicla v. United States, 

572 F.3d 407, 414 (7th Cir. 2009)). Plain and simple, the district 

court saw the case as overwhelmingly lopsided in the government’s favor. So do we. 

II

What we have seen in this appeal has troubled us. The 

Witkempers’ counsel, Jason Smith, has advanced arguments 

that have ignored the trial evidence and the deferential standard under which we must review the district court’s findings 

of fact. When the government pointed this out in its opposition brief, Smith never replied—despite seeking an extension 
No. 21-2029 7

of time within which to file a reply brief. And making matters 

worse, in oral argument Smith seemed surprised at the 

Court’s questions about the trial evidence and standard governing our appellate review.

Unfortunately, we saw much of the same from Smith in 

another recent appeal, Galloway v. Commissioner of Internal 

Revenue, 2022 WL 400955 (7th Cir. 2022). There, Smith pressed 

arguments expressly foreclosed by statute; indeed, we lacked 

the authority to even consider the claims in his brief. In that 

case, too, the government pointed out Smith’s obvious deficiencies to no avail—he once again failed to file a reply brief. 

And in oral argument Smith had no response to the substance 

of the government’s position. 

Right to it, Smith’s performance over these two recent appeals falls well below the standards we expect from lawyers 

authorized to practice in our Court. See Sambrano v. Mabus, 

663 F.3d 879, 882 (7th Cir. 2011) (describing the role courts 

have in protecting litigants from deficient legal representation). Twice in as many months, Smith has pressed frivolous 

arguments with no realistic prospect of prevailing. And so, 

too, are we aware that a district court in this Circuit recently 

imposed disciplinary sanctions against Smith in an order that 

did not mince words about his unacceptable performance. See 

generally Order Overruling Defendant’s Objections to Magistrate Judge’s Report and Recommendation, Jackson County

Bank v. DuSablon, No. 1:18-cv-01346 (N.D. Ill. Feb. 12, 2020), 

ECF No. 81. In all of these cases Smith represented clients who 

deserved better.

Under Rule 46 of the Federal Rules of Appellate Procedure, we may suspend or disbar a member of our bar if that 

individual engages in “conduct unbecoming of a member of 
8 No. 21-2029 

the court’s bar,” Fed. R. App. P. 46(b)(1)(B)—conduct which 

is “contrary to professional standards [and] shows an unfitness to discharge continuing obligations to clients or the 

courts, or conduct inimical to the administration of justice.” 

In re Snyder, 472 U.S. 634, 645 (1985). 

Not taking this step lightly, what we have witnessed in 

this case and the recent Galloway appeal leads us to question

Smith’s fitness to practice before our Court. Accordingly, we 

order Jason Smith to show cause within 21 days of this 

decision why he should not be removed or suspended from 

the bar of this Court under Rule 46 of the Federal Rules of 

Appellate Procedure. 

AFFIRMED WITH ORDER TO SHOW CAUSE.