T.C. Memo. 2010-274

UNITED STATES TAX COURT

SCOTT E. RUBENSTEIN, TRANSFEREE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent*

Docket No. 1254-06. Filed December 13, 2010.

Scott E. Rubenstein, pro se.

Timothy A. Sloane, for respondent.

SUPPLEMENTAL MEMORANDUM OPINION

THORNTON, Judge: Our prior opinion, Rubenstein v.

Commissioner, 134 T.C. 266 (2010), mandated a Rule 155

*This opinion supplements our previously filed opinion in

Rubenstein v. Commissioner, 134 T.C. 266 (2010). 
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computation.1 The parties have filed alternative computations. 

They disagree primarily as to whether respondent is entitled to

interest for any period before he issued the notice of transferee

liability. 

In the notice of transferee liability respondent determined

that petitioner owed transferee liability of $44,681 “plus

interest as provided by law”.2 On brief respondent made passing

reference to petitioner’s liability for “statutory interest” but

otherwise did not address the issue of interest at any time

during this proceeding before filing his notice of objection to

petitioner’s computations. In his notice of objection respondent

argues that petitioner is liable for two types of interest: (1)

Pursuant to section 6601, interest at the section 6621

underpayment rate for the period October 17, 2005 (the date

respondent issued the notice of transferee liability), until

petitioner’s transferee liability is finally paid; and (2)

pursuant to Florida law, interest at rates determined under Fla.

Stat. Ann. sec. 55.03 (West 2006) for the period February 21,

2003 (the date Jerry Rubenstein transferred his condominium to

petitioner), until October 17, 2005 (the prenotice period). 

1Unless otherwise indicated, all Rule references are to the

Tax Court Rules of Practice and Procedure, and all section

references are to the Internal Revenue Code. 

2Giving effect to respondent’s concession, we have held that

petitioner’s transferee liability, exclusive of interest, is

$41,000.
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Petitioner does not dispute his liability for Federal statutory

interest from the date of the notice of transferee liability but

states that he neither understands nor agrees with respondent’s

assertion that he is liable for interest under Florida law during

the prenotice period.

In cases such as this where the value of assets transferred

is insufficient to cover the transferor’s tax liabilities, the

Government may be entitled, as compensation for the transferee’s

“wrongful use” of those assets, to interest for the period after

the transfer but before the issuance of the notice of transferee

liability. Lowy v. Commissioner, 35 T.C. 393, 397 (1960); see

Patterson v. Sims, 281 F.2d 577, 580 (5th Cir. 1960); Estate of

Stein v. Commissioner, 37 T.C. 945, 959-960 (1962). Any such

right is founded upon State law, which is determinative of

matters such as the interest rate and the date from which

interest runs.3 Lowy v. Commissioner, supra at 397. 

 Jerry Rubenstein’s transfer of his condominium to

petitioner occurred in Florida. Accordingly, Florida law

determines respondent’s right to interest during the prenotice

period. To compensate for loss of the use of transferred assets,

Florida law allows a successful plaintiff to recover, on a

3By contrast, in cases where the value of transferred assets

exceeds the transferor’s total liability, interest is charged

upon the deficiency pursuant to sec. 6601 for the period

commencing with the transfer. Estate of Stein v. Commissioner,

37 T.C. 945, 959-961 (1962).
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liquidated claim, “prejudgment interest” from the date of

transfer. Becker Holding Corp. v. Becker, 78 F.3d 514, 516 (11th

Cir. 1996); Bosem v. Musa Holdings, Inc., So. 3d (Fla.

Sept. 23, 2010); Argonaut Ins. Co. v. May Plumbing Co., 474 So.

2d 212 (Fla. 1985). Our decision fixes petitioner’s liability as

of the date of the condominium’s transfer. Consequently, under

Florida law petitioner is potentially liable for prejudgment

interest from that date to the date of the notice of transferee

liability. See Harper v. Commissioner, T.C. Memo. 1993-126;

LeBeau v. Commissioner, T.C. Memo. 1992-359; Crews v.

Commissioner, T.C. Memo. 1988-462.

As previously indicated, before submitting his notice of

objection to petitioner’s Rule 155 computations, respondent did

not expressly state a claim for prejudgment interest, other than

by broadly asserting a right to “interest as provided by law” and

to “statutory interest”. Cf. Natl. Pneumatic Co. v. United

States, 176 Ct. Cl. 660, 666 (1966) (noting that the “most

natural meaning” of “statutory interest” in a Federal tax

proceeding denotes deficiency or delinquency interest under the

Code). Any argument under Rule 155 “will be confined strictly to

consideration of the correct computation of the amount to be

included in the decision resulting from the findings and

conclusions made by the Court, and no argument will be heard upon

or consideration given to * * * any new issues.” Rule 155(c). 
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The prohibition against raising “new issues” in this context

generally has been construed to preclude raising issues that

would require consideration of evidence not already contained in

the record. See Harris v. Commissioner, 99 T.C. 121, 124 (1992);

Cloes v. Commissioner, 79 T.C. 933, 935 (1982); Pinson v.

Commissioner, T.C. Memo. 2000-393. 

The record before us contains all the evidence necessary to

decide respondent’s claim for prejudgment interest, except for

the applicable rate of interest under Florida law. Respondent’s

notice of objection indicates that the applicable Florida

interest rates are determined under Fla. Stat. sec. 55.03, which

requires Florida’s chief financial officer to annually set the

rate of interest payable on judgments or decrees. These rates

are published in the Florida Administrative Weekly, an official

Internet Web site that is electronically published at

http://www.fldfs.com/aadir/interest.htm. See Allstate Ins. Co.

v. Palterovich, 653 F. Supp. 2d 1306, 1329 (S.D. Fla. 2009)

(citing the above Web site for the interest rate set by Florida’s

chief financial officer); Valmont Indus., Inc. v. Susie’s

Structures, Inc., No. 5:08-cv-81-Oc-10GRJ (M.D. Fla. Jan. 14,

2009) (order adopting the report and recommendation of the

magistrate judge, which cites the above Web site). 

Rule 201 of the Federal Rules of Evidence, applicable in

this Court pursuant to Rule 143(a), provides for judicial notice
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of “adjudicative facts”. “A judicially noticed fact must be one

not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the trial

court or (2) capable of accurate and ready determination by

resort to resources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). “Judicial notice may be

taken at any stage of the proceeding.” Fed. R. Evid. 201(f). 

Judicial notice may be taken of matters of public record

available on a Government Web site. See, e.g., Marshek v.

Eichenlaub, 266 Fed. Appx. 392, 392 (6th Cir. 2008) (taking

judicial notice of information from the Federal Bureau of Prisons

Web site); Denius v. Dunlap, 330 F.3d 919, 926-927 (7th Cir.

2003) (holding that the District Court erred in withdrawing its

judicial notice of information on the official Web site of a

Federal agency that maintained medical records on retired

military personnel); Laborers’ Pension Fund v. Blackmore Sewer

Constr., Inc., 298 F.3d 600, 607 (7th Cir. 2002) (taking judicial

notice of information from the Federal Deposit Insurance Corp.’s

official Web site); Evans v. Commissioner, T.C. Memo. 2010-207

(and cases cited therein).

We take judicial notice that the Florida per annum statutory

interest rates as published electronically in the Florida

Administrative Weekly were 6 percent, 7 percent, and 7 percent

for 2003, 2004, and 2005, respectively. Because respondent’s
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claim for prejudgment interest requires no consideration of other

evidence not already in the record and involves “pure questions

of law * * * [that] are inextricably intertwined with the proper

amount to be entered as a decision”, we conclude that this issue

is appropriately considered in this Rule 155 proceeding. See

Estate of Buchholtz v. Commissioner, 70 T.C. 814, 815-816 (1978)

(holding that issues concerning interest accrual in determining

the value of U.S. Treasury bonds to be included in a gross estate

were appropriately considered in a Rule 155 proceeding). 

We conclude and hold that pursuant to Florida law respondent

is entitled to prejudgment interest for the period February 21,

2003, until October 17, 2005, at per annum rates of 6 percent for

2003 and 7 percent for 2004 and 2005. This prejudgment interest

stops accruing upon the date of statutory notice; interest

accruing after that date is a matter of Federal law under the

Internal Revenue Code.4 See Estate of Stein v. Commissioner, 37

T.C. at 959-961. 

4The Florida Supreme Court has held that because prejudgment

interest “becomes part of a single total sum adjudged to be due

and owing”, postjudgment interest accrues on the amount awarded

for prejudgment interest. Quality Engineered Installation, Inc.

v. Higley S., Inc., 670 So. 2d 929, 931 (Fla. 1996). The parties

have not addressed any issue as to whether sec. 6601 interest

should similarly accrue on prejudgment interest, nor has

respondent sought sec. 6601 interest on prejudgment interest in

his computations. Instead respondent asserts that sec. 6601

interest accrues on “petitioner’s transferee liability”, which

according to his computation is $41,000. We deem respondent to

have waived any claim to Federal statutory interest on accrued 

prejudgment interest.
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 In his computations and proposed decision, respondent has

not computed the amount of prejudgment interest to which he

claims he is entitled. Because the amount of prejudgment

interest can be precisely calculated and becomes part of

petitioner’s liability resulting from our decision, it is

appropriate that the computations state the amount of prejudgment

interest to be included in the decision. 

In his computation petitioner requests an abatement of

interest for the period November 13, 2006, through November 3,

2008, asserting that this case was continued during that period

because of the illness of respondent’s counsel. We question the

premises.5 But more fundamentally, construing petitioner’s claim

for interest abatement as implicitly invoking section 6404(h),

which authorizes this Court to abate assessed interest in certain

circumstances, we conclude that we lack jurisdiction to consider

petitioner’s claim as the interest he seeks to have abated has

neither been assessed nor been the subject of any final

determination by respondent pursuant to section 6404(e). See

Williams v. Commissioner, 131 T.C. 54, 55-56 (2008).

5While it is true that on Nov. 13, 2006, the Court continued

this case on respondent’s motion, the next continuance, on Oct.

31, 2007, was at petitioner’s request and due to his own ongoing

health problems.
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The parties shall submit a revised Rule 155 computation or

computations, consistent with our conclusions herein.

Decision will be entered

under Rule 155.