U.S. v. Edelman
| Decision Date | 15 September 2009 |
| Docket Number | Civil No. 06–1216–WJ/RLP. |
| Citation | 761 F.Supp.2d 1158 |
| Parties | UNITED STATES of America, Plaintiff,v.Jon EDELMAN aka Jon J. Edelman or John J. Edelman, Defendant. |
| Court | U.S. District Court — District of New Mexico |
OPINION TEXT STARTS HERE
Waymon Giles Dubose, Jr., U.S. Dept. of Justice, Dallas, TX, for Plaintiff.Jon Edelman, Arroyo Hondo, NM, pro se.
THIS MATTER comes before the Court upon (I) Defendant's Opposed Second Motion to Dismiss, filed February 2, 2009 (Doc. 46), (ii) Plaintiff's Opposed Second Motion of United States for Summary Judgment, filed April 15, 2009 (Doc. 53), and (iii) Defendant's Opposed Motion to Enlarge Time to Respond to Plaintiff's Motion for Summary Judgment, filed April 27, 2009 (Doc. 54). The Court having reviewed the motions, the memoranda of the parties, the record, and the applicable law, and otherwise being fully advised, finds that the Defendant's motion to dismiss is not well taken and will be denied; Plaintiff's motion for summary judgment will be granted in part and denied in part; and Defendant's motion to enlarge time will be granted.
The Government's complaint against Defendant Edelman (“Edelman”) seeks to reduce to judgment certain federal tax assessments for the years 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1987, 1992, 1993, 1994, 1995, 1996, 1997, 1998 and 2003. First Am. Compl. ¶ 1. The claimed aggregate unpaid balance of these assessments, including accrued interest as of December 14, 2006 was $412,074,674.12. Id. ¶ 8 at 5. The Government also asked for interest and other statutory additions accruing after December 14, 2006, until paid; a ten percent surcharge authorized by 28 U.S.C. § 3011; and, costs. Id. at 5–6.
In response to receiving a notice of deficiency, in March 1987, Edelman filed with the United States Tax Court, in docket no. 8253–87, a petition to have redetermined his federal income tax liability for tax years 1979 and 1980. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 4 at 2. In January 1988, Edelman filed with the United States Tax Court, in docket no. 887–88, a petition to have redetermined his federal income tax liability for tax year 1981. See id. ¶ 5 at 2.
On February 8, 1989, Edelman was indicted on multiple counts of federal income tax fraud and of conspiracy to defraud the United States. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 6 at 3. Edelman was convicted of the charges, sentenced to serve five years in prison and fined $450,000. See id. ¶ 7–8 at 3. He appealed and his conviction was affirmed. See id. ¶ 9 at 3.
Beginning in 1993, the Government performed multiple assessments against Edelman for tax years 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1987, 1992, 1993, 1994, 1995, 1996, 1997, 1998 and 2003. See First Am. Compl., at 2–5. On January 11, 1993, the IRS filed motions to compel production of documents in these cases. See Edelman v. Commissioner, 103 T.C. 705, 707 (1994). On January 19, 1993, Edelman filed motions to dismiss, or in the alternative, to enforce a settlement agreement with the IRS. See id. at 706. Hearings were held on June 10, 1993 in New York City and on November 15, 16 and 17, 1993 in Washington, D.C. Id. On July 28, 1993, Edelman began serving a five year sentence at the Federal Correctional Institute in Florence, Colorado. See id. at 706; see Memo in Supp. of Sec. Mot. For Sum J. ¶ 10 at 4.1 On September 13, 1993, in response to a Notice of Deficiency pertaining to tax years 1982, 1983, 1984, 1985, 1986 and 1987, Edelman filed a petition with the United States Tax Court in docket no. 19630–93 for a redetermination of the taxes for those years. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 11 at 4. On or about September 25, 1993, Edelman escaped from the correctional facility and fled the United States. Edelman v. Commissioner, 103 T.C. at 706; Id. 12–13 at 4. On April 7, 1994, the Commissioner filed motions to dismiss based on Edelman being a fugitive from justice. Edelman v. Commissioner, 103 T.C. at 706; Memo in Supp. of Sec. Mot. For Sum J. ¶ 14 at 4. On May 16, 1994, Edelman responded with memoranda of law in opposition to the Commissioner's motion. The Commissioner replied to the response.
On December 5, 1994, based upon the fugitive dismissal rule, the United States Tax Court denied Edelman's motion to dismiss or, in the alternative, to enforce settlement and set forth Edelman's tax deficiencies for years 1979 through 1981. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 14 at 4; see also, Edelman v. Commissioner, 103 T.C. at 705. The court gave Edelman thirty days after the opinion has been served to file a motion to vacate. Edelman did not motion to vacate that decision.
On December 6, 1994, the United States Tax Court entered an Order and Order of Dismissal and Decision in docket no. 8253–87 denying Edelman's motion to dismiss or in the alternative to enforce settlement, granting the Commissioner's motion to dismiss for fugitive status, and deciding Edelman's taxes and additions to tax due for 1979 and 1980. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 15 at 5; Doc. 53–8. On that same date, the United States Tax Court entered an Order and Order of Dismissal and Decision in docket no. 887–88 denying Edelman's motion to dismiss, or in the alternative, to enforce settlement, granting the Government's motion to dismiss for fugitive status deciding the amount of deficiency in income tax and addition to tax due by Edelman for tax year 1981. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 16 at 5; Doc. 53–10 at 1.
On May 3, 1995, the United States Tax Court entered an Order and Order of Dismissal and Decision in docket no. 19630–93 setting forth Edelman's income tax deficiencies as well as statutory additions owed by him for tax years 1982, 1983, 1984, 1986 and 1987. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 17 at 5 and 6;; Doc. 53–7 at 1–2. On May 8, 1995, the United States Tax Court entered an Order and Order of Dismissal and Decision in docket no. 7337–93 granting the Government's motion to dismiss for fugitive status and deciding two additions to tax due from Edelman and his wife Barbara Edelman for tax year 1985. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 18 at 6; Doc. 53–12.
Edelman did not return to the United States until November 1995. See Memo in Supp. of Sec. Mot. For Sum J. ¶ 13 at 4.
On January 29, 1998, Edelman filed returns for tax years 1992, 1993, 1994 and 1995. Resp. to Sec. Mot. to Dismiss at 2. Based on those returns, the IRS assessed taxes against Edelman for tax years 1992, 1993 and 1994 on March 16, 1998 and tax year 1995 on March 2, 1998. Id.
The Government filed its original complaint in this matter, pertaining to tax years 1979 through 1985 and 1987 on December 13, 2006. Compl. On April 16, 2007, the Government filed its First Amended Complaint, adding to its claim tax years 1992 through 1998 and 2003. First Am. Compl. Edelman, appearing pro se, filed an Answer and an Amended Answer on May 13, 2007. The Government has since withdrawn its claim for all of tax year 1983 and for tax year 1985 assessed before November 22, 1993. See Reply to Resp to Sec Mot for Sum J. ¶ 7 at 4.
Edelman previously filed a motion to dismiss and the Government previously filed a motion for summary judgment. The court denied both motions: Edelman's motion to dismiss as not well taken and the Government's motion for summary judgment as premature.
On February 2, 2009, Edelman filed his Opposed Second Motion to Dismiss, arguing that this action should be dismissed because the statute of limitations for collection has lapsed. Edelman also contends that this case “is not an attempt to collect, and is not an attempt to enforce a lien.” Sec Mot to Dismiss at 2. On February 10, 2009, the Government filed its Response of United States to Opposed Second Motion to Dismiss stating that Defendant's motion is meritless and the statute of limitations had not expired at the time of the filing. The Government asserts that its action is an attempt to collect and enforce a lien. Resp to Sec Mot to Dismiss at 3. Edelman's Reply to Opposed Second Motion to Dismiss filed February 24, 2009 reiterated his previously made arguments.
On April 15, 2009, the Government filed its Opposed Second Motion of United States for Summary Judgment and supporting memorandum. The Government asserts that there is no genuine issue of material fact: Edelman's taxes remain unpaid and the Government filed its action prior to the expiration of the applicable statute of limitations.
Edelman filed Defendant's Opposed Motion to Enlarge Time to Respond to Plaintiff's Motion for Summary Judgment on April 27, 2009. On April 29, 2009, the Government filed its Response of United States to Opposed Motion to Enlarge Time to Respond to Plaintiff's Motion for Summary Judgment and stated that, after reading Edelman's Motion, it no longer opposed it. On May 7, 2009, Defendant filed his reply.
Edelman filed his Response to Second Motion for Summary Judgment on May 18, 2009 asserting that he is not indebted to the United States, disputing the correctness of the assessment as determined by the Tax Court, and contending that the statute of limitations has expired. On June 3, 2009, the Government filed its Reply to Response to Second Motion for Summary Judgment.
On June 5, 2009, Edelman filed an Opposed Motion to Extend Time to File a Document requesting an extension of time to file a certified copy of a January 6, 1993 Internal Revenue Service (IRS) Memo. The Government responded on July 4, 2009 contending that Edelman has not shown how this document proves the taxes are arbitrary and capricious and that Edelman has not disclosed all documents in discovery. The Court, on June 8, 2009, granted the Motion for a period of thirty days. On July 14, 2009, Edelman filed an Addendum and attached a certified copy of the memo.
“To survive a motion to dismiss, a complaint must contain...
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