U.S. v. Upton, Civil No. 3:92CV524 (AWT).

• Decision Date: 19 March 1997
• Docket Number: Civil No. 3:92CV524 (AWT).
• Citation: 967 F.Supp. 57
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America, Plaintiff, v. Ross P. UPTON, Amelia A. Upton, and James D. Upton, Defendants.

Page 57

967 F.Supp. 57

UNITED STATES of America, Plaintiff, v. Ross P. UPTON, Amelia A. Upton, and James D. Upton, Defendants.

Civil No. 3:92CV524 (AWT).

United States District Court, D. Connecticut.

March 19, 1997.

John V. Cardone, U.S. Dept. of Justice, Washington, DC, John B. Hughes, U.S. Attorney's Office, New Haven, CT, Keith V. Morgan, U.S. Dept. of Justice, Washington, DC, for Plaintiff.

Amelia A. Upton, Ross P. Upton, Watertown, CT, James D. Upton, Goshen, CT, pro se.

MEMORANDUM OF DECISION

THOMPSON, District Judge.

Plaintiff United States of America moves for partial summary judgment seeking a judgment against defendant Ross P. Upton in the amount of $146,226.69, plus statutory additions from January 23, 1989, for federal income tax liabilities for the tax years 1980, 1981, and 1982. The defendants also move for summary judgment. For the reasons set forth below, the plaintiff's motion should be granted and the defendants' motion should be denied.

BACKGROUND

Defendant Ross P. Upton ("Upton") resides in Watertown, Connecticut. During the years 1980, 1981, and 1982, Upton did business as Upton Products Company. Upton Products Company designed and built special machinery for manufacturing. Upton Products Company was not a corporation or partnership and did not file separate tax returns. In addition, Upton did not file federal income tax returns for 1980, 1981, and 1982.

On January 23, 1989, a delegate of the Secretary of the Treasury made assessments against Upton for unpaid federal income taxes, interest, and penalties, for the tax years 1980, 1981, and 1982. The total of these assessments was $146,226.69. A delegate of the Secretary of the Treasury issued notices of these assessments and made demands for payment. Upton refused or neglected to pay the assessed liabilities and remains indebted to the United States for the total amount of $146.226.69, plus statutory additions from the date of assessment. The Government now moves for partial summary judgment against Upton with regard to this income tax liability. The Government does not seek summary judgment on its fraudulent conveyance claims.

DISCUSSION

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits .... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).

The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Mere conclusory allegations or denials in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980).

The court addresses first the defendants' motion for summary judgment. The defendants argue that Connecticut's three-year statute of limitations applies to the Government's fraudulent conveyance claims. The court previously ruled on this issue in the "Ruling on Pending Motions" dated December 28, 1993 (Document # 23) The Connecticut three-year statute of limitations for setting aside fraudulent transfers is not applicable to a suit by the United States to recover the value of allegedly fraudulently conveyed property in partial satisfaction of outstanding tax deficiencies. See United States v. Fernon, 640 F.2d 609, 612 (5th Cir.1981).

The defendants also argue that the Federal Debt Collection Procedure Act ("FDCPA"), 28 U.S.C. §§ 3001-3009, bars the plaintiff's claims. As the defendants recognized in their brief, other district courts in this circuit have held that the FDCPA is not the exclusive judicial means by which the United States may collect its taxes. See United States v. Carney, 796 F.Supp. 700, 703 (E.D.N.Y.1992); United States v. Bushlow, 832 F.Supp. 574, 581 (E.D.N.Y.1993). This court agrees. The FDCPA specifically provides that:

This chapter shall not be construed to curtail or limit the right of the United States under any other Federal law or any State law to collect taxes or to collect any other amount collectible in the same manner as a tax.

28 U.S.C. § 3003(b)(1). Congress clearly intended that the Government retain its option to proceed under other federal or state law. Accordingly, the FDCPA does not apply to this action and the Government is free to proceed under other state or federal law. The court therefore rejects Upton's claim that the periods of limitations prescribed by the FDCPA bar this action.

The court next addresses the plaintiff's motion. As stated in the court's ruling filed on December...