Gonzalez v. United States, 84-2600-Civ-Hoeveler.

• Decision Date: 15 January 1985
• Docket Number: No. 84-2600-Civ-Hoeveler.,84-2600-Civ-Hoeveler.
• Citation: 606 F. Supp. 134
• Parties: Armando GONZALEZ, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

606 F. Supp. 134

Armando GONZALEZ, Plaintiff, v. UNITED STATES of America, Defendant.

No. 84-2600-Civ-Hoeveler.

United States District Court, S.D. Florida.

January 15, 1985.

Jay R. Moskowitz, Miami, Fla., for plaintiff.

Steven Kwartin, North Miami, Fla., for defendant.

ORDER OF DISMISSAL WITHOUT PREJUDICE

HOEVELER, District Judge.

This cause came before the Court for hearing on December 14, 1984, upon the Complaint of Plaintiff Armando Gonzalez for a summary de novo review pursuant to 26 U.S.C.A. § 7429(b)(1) of a termination assessment made by the Internal Revenue Service on or about August 20, 1984.

Agents of the Internal Revenue Service personally delivered to the Plaintiff a Notice of Termination Assessment of Income Tax for the period of January 1, 1984 through July 25, 1984. A Termination Assessment under Section 6851 of the Internal Revenue Code is made for a tax year that either has not ended or for which the due date for filing a tax return has not yet passed. The Notice served upon Mr. Gonzalez assessed a tax against him in the amount of $886,841.40. The Notice from the District Director of the Internal Revenue stated that

under the section 6851 of the I.R.C., you are notified that I have found you designing to quickly place property beyond the reach of the Government by either concealing it or dissipating it, thereby tending to prejudice or render ineffective collection of income tax for the 1984 taxable year.

Workpapers of an Internal Revenue Service agent were attached to the assessment. The papers stated that Metropolitan Dade County police officers, while executing a search warrant, found a large sum of money—$1,784,740.00—in the bedroom closet of the Plaintiff's residence. According to the agent's notes, an analysis of Plaintiff's previously filed tax returns indicated that the monies found were never reported by the Plaintiff.

At the hearing of December 14, 1984 on this cause, several Metro-Dade police detectives testified about an ongoing narcotics investigation and execution of the search warrant on Plaintiff's residence on or about July 25, 1984, that led to a customs dog's alert to the $1,784,740.00 contained in large plastic garbage bags in the bedroom of Plaintiff's residence at 235 N.W. 59th Avenue in Miami, Florida. Detective Mario Biovides testified that a confidential informant had reported to the Metro-Dade police that he had observed approximately five kilograms of cocaine in the Plaintiff's residence. The Government presented a copy of the affidavit for Search Warrant as Government's Exhibit 1. The affidavit contained information supporting the informant's reliability.

Detective Juan Espinosa testified that he was present during the execution of the search warrant when the monies were found. Customs Officer John Mackolin, a "K-9" enforcement officer, testified that his customs dog alerted to the garbage bags that contained the money, indicating that the money had been near or in contact with narcotics.

The Government also presented pictures of the seized currency, Government's Exhibits 2A and 2B. Of the monies seized, there were six hundred and six one-hundred dollar bills, two thousand and seventy two fifty-dollar bills, seventy six thousand and six hundred fifty five twenty dollar bills, six thousand seven hundred and twenty one ten-dollar bills, and forty-six five-dollar bills. Detective Schumacher, also of the Metro-Dade police force and present at the execution of the search warrant, testified that the condition and packaging of the bills was similar to money used in the purchase and sale of narcotics. Detective Schumacher testified as having thirteen years of narcotics investigation experience.

The monies seized are presently the subject of a forfeiture action in Dade County State Court, In re: Forfeiture of $1,784,740.00 in U.S. Currency, Case No. 84-27674, Eleventh Judicial Circuit in and for Dade County, Florida. Thus, Plaintiff contends that the termination assessment issued by the Internal Revenue under 26 U.S.C.A. § 6851 (West Supp.1984) was not reasonable under the circumstances. Plaintiff asserts that the money is presently in the custody of...