U.S. v. Greer
| Decision Date | 17 March 2005 |
| Docket Number | No. CIV. 1:03CV223.,CIV. 1:03CV223. |
| Citation | 360 F.Supp.2d 760 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | UNITED STATES of America, Plaintiff, v. Herman E. GREER; Herman E. Greer, Trustee of Greer Farm Trust; Helen G. McKinney; Helen G. McKinney, Executrix of the Estate of Elise Greer; State of North Carolina; Transylvania County; Lisa Greer Whitmire; and Timothy C. Whitmire, Trustee of Greer Farm Trust, Defendants. |
Robert J. Conrad, Jr., U.S. Attorney's Office, Charlotte, NC, Jonathan D. Carroll, U.S. Dept. of Justice, Washington, DC, for Plaintiff.
Herman E. Greer, Pro Se, Sapphire, NC.
Lisa Greer Whitmire, Pro Se, Easley, SC.
Michael K. Pratt, Ramsey, Hill, Smart, Ramsey & Pratt, P.A., Scott D. Neumann, Brevard, NC, Michael D. Youth, Alexandra M. Hightower, Asst. Atty. Gen., N.C. Department of Justice, Raleigh, NC, for Defendants.
THIS MATTER is before the Court on Plaintiff's motions for summary judgment and for default judgment and the Defendant Herman E. Greer's motions to dismiss and to compel.
The United States has made assessments against the Defendant, Herman Greer,1 for his failure to pay income taxes for the years 1986 through 1996. The assessments show that the Defendant owed $320,554.37 as of August 3, 2004, with further interest and penalties accruing from that date. United States' Memorandum in Support of Summary Judgment ["Plaintiff's Memorandum"], filed October 14, 2004, at 3. As a result, federal tax liens rose against all property and rights to property belonging to the Defendant. See 26 U.S.C. §§ 6321, 6322. The United States moves the Court for summary judgment as to the Defendant's tax liability and for permission to foreclose on two parcels of real estate it alleges are owned or controlled by the Defendant in order to satisfy his federal tax liabilities. The Plaintiff has also moved the Court to enter default judgment against the Defendant Timothy Whitmire, against whom entry of default has been filed. The Defendant has filed a timely response in opposition to the Plaintiff's motions for summary and default judgment and has further moved the Court to compel the Plaintiff turn over documentation supporting the tax assessments. He has also filed a "Demand to Dismiss" which the Court will construe as a motion to dismiss and to which the Plaintiff has not specifically responded. See, Defendant's "Special Appearance, etc., and Demand to Dismiss the Government[']s Case Against the Defendant, etc.", filed August 27, 2004. However, after review of the Defendant's motion to dismiss, the Court determines that a response from the Government is unnecessary.
The Court construes the Defendant's "Demand to Dismiss" as a motion to dismiss based on a lack of subject matter jurisdiction and failure of service. The Defendant also argues that the Plaintiff's claims should be dismissed because of fraudulent and criminal conduct by the Plaintiff. The Court finds the arguments have no merit and summarily denies the Defendant's motion to dismiss.
This Court has subject matter jurisdiction over this matter under 28 U.S.C. §§ 1331, 1340, 1345 and 26 U.S.C. § 7402(a). Furthermore, the Plaintiff has put forth evidence that the Defendant was properly served individually, and as a trustee of the Greer Farm Trust, on November 10, 2003. See Exhibit A, attached to, Plaintiff's Response to Herman Greer's Demand to Set Aside the Alleged Default of Defendant Timothy Whitmire, filed August 6, 2004. The Defendant also filed an answer to the Plaintiff's complaint on December 1, 2003, demonstrating that he was served with the complaint. See Answer of Defendant Herman Greer, filed December 1, 2003. Therefore, the Court denies the Defendant motion to dismiss on lack of subject matter jurisdiction and failure of service.
The Defendant's allegations of fraud and criminal conduct by the Plaintiff are construed by the Court to be a challenge to the basis for and computation of the alleged tax liabilities asserted against the Defendant by the Plaintiff. The Court will address the sufficiency of these arguments below when determining the merits of Plaintiff's motion for summary judgment regarding the Defendant's tax liabilities.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking to defeat a motion for summary judgment "may not rest upon the mere allegations or denials of [his] pleadings," but instead must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Unsupported allegations and speculation are not sufficient to defeat a summary judgment motion. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ().
The United States moves for summary judgment on the grounds that the Defendant did not offer evidence to rebut its prima facie case and, therefore, has not shown there is a genuine issue of material fact for trial. To prove a prima facie case of tax liability, the Government need only provide certified copies of Form 4340 certificates of assessments. United States v. Pomponio, 635 F.2d 293, 296 (4th Cir.1980); United States v. Hopkins, 859 F.Supp. 208, 211 (S.D.W.Va.1994). The Government's assessment of tax liability is presumptively correct; to defeat its motion for summary judgment, the burden is on the taxpayer to overcome this presumption and put forth evidence that there is a genuine issue of material fact that the assessment was invalid or that the amount assessed was erroneous. Pomponio, 635 F.2d at 296; Lehnhardt v. United States, 1993 WL 218906, *3 (M.D.N.C.1993). To satisfy this burden, the taxpayer must put forth some evidence other than his own self-serving statements and conclusions. See Liddy v. C.I.R., 808 F.2d 312, 315 (4th Cir.1986) (); see also, United States v. Troyer, 983 F.2d 1074 (table), 1992 WL 382378, * 6 (7th Cir.1992) (); United States v. Cook, 2004 WL 690804, *6 (E.D.Pa.2004) ().
The Government has presented to the Court certified copies of Form 4340 establishing a prima facie case of tax liability against the Defendant for the tax years 1986 through 1996. See Exhibit A, attached to United States' Motion for Summary Judgment ["Plaintiff's Motion"], filed October 14, 2004. The Defendant has filed a response to Plaintiff's motion for summary judgment along with his affidavit regarding the facts of the case. The Defendant argues that he was not gainfully employed during the years in question and was using his mother's savings for his living expenses; therefore, he did not have any taxable income during this period.2 Defendant Greer's Answer to Motion for Summary Judgment and Default Judgments ["Defendant's Answer to Motion"], filed November 22, 2004, ¶ 5f; Affidavit of Herman Greer, filed November 22, 2004, at 1. However, the Defendant did not produce any evidence outside of these self-serving statements and conclusions and his general denials of the Government's tax assessments. Id. The Court finds that the Defendant has not overcome his burden to show that these assessments are incorrect or by placing before the Court any evidence that would show there is a genuine issue of material fact for trial. Therefore, the Government is entitled to summary judgment on the issue of the Defendant's tax liability.3
Having granted the Plaintiff's motion for summary judgment as to the tax liability issue, the Defendant's motion to compel is moot.
A federal tax lien on real property resulting from a tax assessment is enforceable through lien-foreclosure proceedings and a court ordered sale of the property. 26 U.S.C. § 7403; United States v. Rodgers, 461 U.S. 677, 690-91, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983). A court may order the sale of "[a]ny property in which the taxpayer has `"any right, title, or interest'" ... including property in which others claim an interest, so long as all persons `"having liens upon or claiming any interest in the property'" are joined as parties to the suit." United States v. Hopkins, 859 F.Supp. 208, 211-212 (S.D.W.Va.1994) (quoting Rodgers, 461 U.S. at 692-93, 103 S.Ct. 2132 (quoting 26 U.S.C. § 7403(a) & (b))). Once the Court determines the merit of all claims of interest or liens on such property and that the United States has a valid lien or claim, the Court may "decree a sale of the such property ... and a distribution of proceeds of such sale according to the findings of the court with respect to the interest of the parties and of the United States." 26 U.S.C. § 7403(c).
By consent judgment entered in a state court action, the Defendant's sister, co-Defendant Helen McKinney, was ordered...
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