DiFoggio v. United States, 77 C 4021.
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
| Citation | 484 F. Supp. 233 |
| Docket Number | No. 77 C 4021.,77 C 4021. |
| Parties | Bernadette DiFOGGIO, Plaintiff, v. UNITED STATES of America, Gaetano J. DeLisa and Barbara Jean DeLisa, Defendants. |
| Decision Date | 06 June 1979 |
484 F. Supp. 233
Bernadette DiFOGGIO, Plaintiff,
v.
UNITED STATES of America, Gaetano J. DeLisa and Barbara Jean DeLisa, Defendants.
No. 77 C 4021.
United States District Court, N. D. Illinois, E. D.
June 6, 1979.
William J. Wise, Coles & Wise, Ltd., Dorothy B. Johnson, Bernard S. Armel, Chicago, Ill., for plaintiff.
Michael Schiessle, Park Ridge, Ill., T. Kazan Ray, Tax Div., Dept. of Justice, Washington, D. C., for defendants.
MEMORANDUM OPINION AND ORDER
CROWLEY, District Judge.
Plaintiff brought this action in an attempt to regain lawful possession of her home,1 which was seized and sold by the Internal Revenue Service (IRS) pursuant to § 6335 of the Internal Revenue Code of 1954 (the Code). Jurisdiction is based on 28 U.S.C. § 1340 and 28 U.S.C. § 2463. The events which resulted in this lawsuit may be summarized as follows.
Plaintiff resided at 3428 S. Parnell Avenue, Chicago. Until that property was seized, it was held in a land trust (known as Trust # 73141) under Agreement dated June 14, 1973. Drovers National Bank of Chicago was named as Trustee and plaintiff was the sole owner of the beneficial interest.
The beneficial interest in the Trust was seized September 9, 1977, for taxes owing the Government from Mrs. DiFoggio and her husband. Plaintiff's liability arose from the joint federal income tax returns she filed with her husband in 1971, 1973, 1974 and 1975. At the time of the seizure, $5,021.06 was due with respect to those joint returns. In addition, plaintiff's husband, Michael, owed the Government more than $12,000 for employer withholding taxes in connection with his sole proprietorship.
Shortly after the beneficial interest of the Trust was seized, the IRS served plaintiff with a Notice of Seizure. It stated that the beneficial interest had been seized because $17,502.34 in taxes was due from Michael and Bernadette DiFoggio. Plaintiff was also mailed a Notice of Sealed Bid Sale concerning the property.
Plaintiff alleges that upon inquiry, her attorney was told by an IRS supervisor that a taxpayer could redeem prior to a sale of property if one-half of the back taxes due would be tendered and if arrangements would be made for deferred payment of the remainder. Plaintiff and her attorney, then, assumed she needed $8,500 to prevent the sale of her beneficial interest in the Trust. Apparently, Mrs. DiFoggio was only able to raise $7,000 and no pre-sale redemption was tendered to the IRS.
Actually, the $17,502.34 figure on the Notice of Seizure represented the combined indebtedness of the DiFoggios, but plaintiff was only liable for $5,021.06. An internal worksheet prepared by an IRS agent indicated that these liabilities were separate. (Montelongo Dep. 67, 68; Exhibit 5-F to Montelongo Dep.) However, the separate indebtedness was not shown on the notices plaintiff received. In addition, since plaintiff was the sole owner of the beneficial interest of the land trust, the Government could satisfy only Mrs. DiFoggio's liability from the sale of the property.2
As stated previously, plaintiff did not make a pre-sale redemption and a sealed bid sale was held September 13, 1977. Defendant DeLisa's bid of $6,300.41 was the highest of two bids submitted and he was
At a hearing in the eviction proceeding on October 19, 1977, plaintiff tendered to defendants DeLisa a cashier's check in the amount of $6,426.42 in redemption of the property in question pursuant to § 6337 of the Code. The DeLisas refused the payment. Mrs. DeFoggio then commenced this action on October 31, 1977.
Plaintiff presented three counts in her amended complaint (the complaint). First, she alleges that the sale was defective because the procedures followed by the IRS did not comply with § 6335 of the Code. Specifically, plaintiff claims that the Notice of Seizure, the Notice of Sealed Bid Sale and a required advertisement of the sale improperly reflected that the property was seized to satisfy taxes due from both Michael and Bernadette DiFoggio, not plaintiff alone. In addition, plaintiff alleges that the Notice of Sealed Bid Sale was mailed to plaintiff rather than personally served as required by statute. A final allegation of impropriety is that the IRS misled plaintiff and her attorney into thinking that $8,500 had been required to release the seizure prior to sale.3
In Count II of the complaint, plaintiff alleges that the DeLisas wrongfully refused her tender in redemption of the property pursuant to § 6337 of the Code. In the last alternative Count, Mrs. DiFoggio states that if the procedures followed by the IRS did not violate § 6337, then that section is unconstitutional and, as applied in this case, deprives plaintiff of property without due process of law in violation of the 5th and 14th Amendments.
Plaintiff and the DeLisas have made simultaneous motions which would render a final judgment if granted. Mrs. DiFoggio moved for summary judgment and the DeLisas moved to dismiss the complaint.4 Since the arguments in support of each motion are directly responsive to each other, we consider them in concert. Further, since we grant plaintiff's motion as to Count II of the complaint, we do not reach the issues in Counts I and III.5
It is an undisputed matter of record in the Circuit Court of Cook County eviction proceeding that the DeLisas refused plaintiff's tender of a cashier's check in the amount of $6,426.42 on October 19, 1977. This tender met the statutory time and price requirements of § 6337(b).6 However, the defendants claim that they were justified...
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Rodriguez v. United States, 82 C 5064.
...417 F.2d at 765. Even if the officer rejects the tender, the redemption has still occurred. Id. at 766; see also DiFoggio v. United States, 484 F.Supp. 233, 237 (N.D.Ill.1979). Plaintiffs redeemed their The act of redemption also extinguished the 1981 levy. By statute, if the taxpayer tende......
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U.S. v. Scarfo, 87-1490
...fears a defendant's retaliation might be more apt to return a guilty verdict despite such fears rather than because of them. See Owens, 484 F.Supp. at 233. If, however, anonymity dispels apprehension, it serves the ideal of dispassionate It is worth observing, too, that after jury selection......
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84 Hawai'i 360, W.H. Shipman, Ltd., Application of, 16494
...construction has been applied to extend redemption rights to the beneficial owner of an interest in land. In DiFoggio v. United States, 484 F.Supp. 233, 234 (N.D.Ill.1979), the plaintiff's beneficial interest to a land trust was sold at a tax sale. The purchaser rejected an attempted redemp......
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In re Grocerland Coop., Inc., Bankruptcy No. 78 B 2644.
...of "real property" and thus "debtor" entitled to petition for relief under former Chapter XII of Bankruptcy Act); Difoggio v. United States, 484 F.Supp. 233 (N.D.Ill. 1979) (beneficiary of an Illinois land trust is entitled to redeem realty sold to satisfy federal tax Concluding, this court......