Kingman v. U.S.
| Decision Date | 29 March 1999 |
| Docket Number | No. C-1-96-1183.,No. C-1-96-1144.,C-1-96-1144.,C-1-96-1183. |
| Citation | 74 F.Supp.2d 753 |
| Parties | Eugene L. KINGMAN, et al., Plaintiffs, v. UNITED STATES of America, Defendant. United States of America, Plaintiff, v. Eugene Kingman, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Eugene L. Kingman, Cincinnati, OH, pro se.
Ida June Kingman, Cincinnati, OH, pro se.
Jan Martin Holtzman, Department of Justice — 1, Cincinnati, OH, Gregory S. Nickerson, U.S. Department of Justice, Washington, DC, for United States.
Order Adopting Report and Recommendation
On February 25, 1999, United States Magistrate Judge Jack Sherman, Jr., issued a Report and Recommendation pursuant to which he recommended that the United States' motion for partial summary judgment (Doc. 19, Case No. C-1-96-1144) be granted, in part, and denied, in part. He further recommended that the Kingmans' motion to dismiss (Doc. 10, Case No. C-1-96-1183) be denied and that their amended complaint (Doc. 10, Case No. C-1-96-1144) be dismissed with prejudice.
Neither party has objected to the recommendation with regard to the Kingmans' action against the United States, Case No. C-1-96-1144. Accordingly, the Court hereby ADOPTS that portion of the Report and Recommendation pursuant to which the Magistrate Judge recommended that the Kingmans' amended complaint be dismissed and the United States be granted summary judgment in that action. The action, Case No. C-1-96-1144, is CLOSED.
The Kingmans object to the Magistrate Judge's recommendation that their motion to dismiss the United States' action against them, Case No. C-1-96-1183, be denied. The basis for their objection is their contention that the federal income tax is unconstitutional. The Magistrate Judge has given that contention more attention than it deserves. The Court finds no merit whatsoever to the Kingmans' objections, having considered the matter de novo (see Fed.R.Civ.P. 72(b)). Accordingly, the Court hereby ADOPTS the Magistrate Judge's recommendation that the Kingmans' motion to dismiss Case No. C-1-96-1183 be denied.
Pursuant to the Report and Recommendation, which the Court hereby ADOPTS, the United States is entitled to judgment in the amount of $139,172.38 plus interest from the date of March 23, 1998. The United States is entitled to a lien upon all property and rights to property, whether real or personal, belonging to Eugene Kingman, the Defendant in Case No. C-1-96-1183, including any interests he holds in the Brookline Avenue properties to which the Magistrate Judge has made reference. The United States' request for judicial sale of those properties is DENIED subject to renewal.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION THAT:
(1) THE GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (96-1144, DOC. 19) BE GRANTED IN PART AND DENIED IN PART;
(3) THE KINGMANS' AMENDED COMPLAINT (96-1144, DOC. 10) BE DISMISSED WITH PREJUDICE
These two consolidated cases concern the federal tax liability of Eugene L. Kingman for the 1984 taxable year and for the 1988 through 1993 taxable years. In the first case, filed pro se, Eugene L. Kingman and his spouse, Ida Kingman, claim that they are entitled to a tax refund due to their alleged overpayment of taxes. The Kingmans also seek a release of an Internal Revenue Service (IRS) levy upon Mr. Kingman's pension, back accounts, and real property. In the second case, the United States (hereafter, "the government") seeks to reduce to Judgment Mr. Kingman's federal income tax liabilities and seeks to foreclose its federal tax liens against Mr. Kingman's interest in three parcels of real property.
This matter is before the Court upon the Kingmans' Statement and Response, which the Court construes in the Kingmans' favor as a Motion to Dismiss , the government's Response (doc. 13), the government's Motion for Partial Summary Judgment (96-1144; doc. 19, with attached exhibit book), Mr. Kingman's affidavit and the Kingmans' Response , and the government's Supplemental Memorandum (96-1144; doc. 26).
In ruling on a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, the factual allegations in the Complaint must be taken as true and must be construed in a light most favorable to the plaintiff. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Denial of the Motion is proper "unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Achterhof v. Selvaggio, 886 F.2d 826, 831 (6th Cir.1989)(citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
In considering whether to dismiss a Complaint under Fed.R.Civ.P. 12(b)(1) due to the lack of subject matter jurisdiction, the plaintiff bears the burden of proving the existence of subject matter jurisdiction. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996). This burden of proof is not onerous. Id. The plaintiff Id. (quoting in part Transcontinental Leasing, Inc. v. Michigan Nat. Bank of Detroit, 738 F.2d 163, 165 (6th Cir.1984)). "In short, when faced with a 12(b)(1) challenge to the face of a complaint, the plaintiff can survive the motion by showing any arguable basis in law for the claim made." Id.
A Motion for Summary Judgment may be granted only if there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Summary judgment will not lie if the dispute about a material fact is "genuine"; that is, if the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The Court's function is not to weigh the evidence and determine the truth of the matters asserted, but to determine if there is a genuine issue of material fact for trial. Id. at 249, 106 S.Ct. 2505. The relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury, or whether the evidence is so one-sided that one party must prevail as a matter of law. Id. at 251-52, 106 S.Ct. 2505. The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfield Tp. Trustees, 980 F.2d 399, 404 (6th Cir.1992); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). Rather, the burden is on the nonmoving party "to present affirmative evidence to defeat a properly supported motion for summary judgment...," Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; Guarino, 980 F.2d at 401. Because the Kingmans appear pro se, their Pleadings, Motions, and Memoranda must be liberally construed in their favor. Williams v. Browman, 981 F.2d 901, 903 (6th Cir.1992).
The government alleges that Mr. Kingman failed to file valid federal income tax returns and failed to report his income for the 1984 taxable year and for the 1988 through 1993 taxable years. Because of these failures, the IRS determined and assessed Mr. Kingman's tax liability for the 1984 taxable year and for the 1988 through 1993 taxable years pursuant to the deficiency procedures set forth in 26 U.S.C. § 6212.1 The approximate total amount of amount of outstanding assessment was $ 145,110.00. (96-1144; doc. 19 at 3-4).
Mr. Kingman petitioned the United States Tax Court regarding his tax returns for the taxable years 1984 through 1987. Kingman v. Comm. of Internal Revenue, T.C. Memo.1992-281, 63 T.C.M. (CCH) 3021, 1992 WL 101160 (U.S.Tax Ct., May 14, 1992). The Tax Court rejected Mr. Kingman's contentions that his wages were not subject to federal income tax, that the income tax is an excise tax, and that he was not a taxpayer. Id., 1992 WL 101160 at 2. The Tax Court found Mr. Kingman liable for 1984 through 1987 income tax and penalties, and further levied a $10,000.00 penalty because "[t]he record in this case reflect[ed] a pattern of delay and the continual, repeated, taking of frivolous and groundless positions." Id. at 3.
In January 1993 the IRS served administrative levies upon Mr. Kingman's bank accounts directing the levied banks to turn over all Mr. Kingman's property and rights to property that they possessed. In January and February 1993, the banks issued checks to the IRS in response to its levies in the approximate total amount of $38,307.00. (96-1144; doc. 19 at 5, and Exhs. 8-11).
On December 26, 1996, the government filed its Complaint (C-1-96-1183) seeking to reduce to Judgment Mr. Kingman's federal income tax liabilities for the 1984 taxable year and the 1988 through 1993 taxable years. The total amount of Mr. Kingman's federal income tax liability sought by the government equals $139,172.38 plus interest accrued after March 23, 1998. ).
The government alleges...
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