US v. Brickman, 95 C 2843.

• Decision Date: 02 November 1995
• Docket Number: No. 95 C 2843.,95 C 2843.
• Citation: 906 F. Supp. 1164
• Parties: UNITED STATES of America, Plaintiff, v. Frances A. BRICKMAN, Michael P. Brickman, Robert T. Brickman and William B. Brickman, Defendants.
• Court: U.S. District Court — Northern District of Illinois

906 F. Supp. 1164

UNITED STATES of America, Plaintiff, v. Frances A. BRICKMAN, Michael P. Brickman, Robert T. Brickman and William B. Brickman, Defendants.

No. 95 C 2843.

United States District Court, N.D. Illinois, Eastern Division.

November 2, 1995.

Ramune Rita Kelecius, United States Department of Justice, Drug Enforcement Agency, Chicago, IL, for plaintiff.

Harvey M. Silets, Timothy J. Patenode, Sean M. Berkowitz, Katten, Muchin & Zavis, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff United States of America ("United States") brought this action against the defendants Frances A. Brickman, Michael P. Brickman, Robert T. Brickman, and William B. Brickman ("Brickman Family") to enforce federal tax liens on property transferred by Joseph M. Brickman ("J. Brickman") to the defendants, or, alternatively, to set aside the transfers made by J. Brickman to the defendants as fraudulent conveyances. The Brickman Family moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the United States' claims are time barred by § 6501 of the Internal Revenue Code ("IRC"), 26 U.S.C. § 6501. Alternatively, the Brickman Family argues that this Court should dismiss that portion of the complaint pertaining to transfers made before J. Brickman was assessed transferee liability for outstanding corporate taxes.

BACKGROUND

Plaintiff's well-pleaded factual allegations, which the Court accepts as true for purposes of deciding the present motion, Sladek v. Bell Sys. Mgt. Pension Plan, 880 F.2d 972, 974-75 (7th Cir.1989), are as follows. In the 1950s and 1960s, J. Brickman operated various corporate construction and real-estate businesses ("unnamed corporations"). Compl. ¶ 10. These unnamed corporations were eventually dissolved with all the corporate assets going to J. Brickman. Id. At the time of dissolution, outstanding corporate federal income taxes remained unpaid. Id. The outstanding corporate taxes gave rise to over 160 separate tax assessments against J. Brickman as transferee of the unnamed corporations. Id. The taxes were assessed on the following dates: (1) 39 assessments on November 9, 1962; (2) 35 assessments on September 6, 1963; (3) 55 assessments on September 13, 1963; (4) 13 assessments on December 6, 1963; (5) 8 assessments on December 13, 1963; (6) 14 assessments on December 27, 1963; and (7) 1 assessment on December 9, 1965. Id.

On October 20, 1977, the United States District Court for the Northern District of Illinois entered judgment in favor of the United States and against J. Brickman for the unpaid taxes assessed against J. Brickman. Id. ¶ 11; see United States v. Brickman, No. 73-C-3244. The amount of the judgment was $1,291,064.22, plus interest at the rate of 6% from the date judgment was entered. Id. J. Brickman failed to pay the assessments and judgment against him, and that judgment, plus statutory interest, remains due and owing. Id. ¶ 12. To date, the amount outstanding exceeds $3 million. Id. ¶ 11.

On November 28, 1960, aware that his taxes were being audited and that he had substantial pending federal tax liabilities, J. Brickman formed the J.M. Brickman Mid-West Corporation ("Brickman Mid-West"). Id. ¶ 13. Brickman Mid-West issued 160,000 shares of common stock. Id. Subsequently, J. Brickman transferred all of his assets to Brickman Mid-West and issued 124,845 shares to himself, 20,385 shares to Frances A. Brickman (his wife) and 2,954 shares to each of his sons, William B. Brickman, Robert T. Brickman, and Michael P. Brickman. Id. The unaccounted for 5,908 shares were apparently issued to J. Brickman who subsequently transferred 130,753 shares to the Brickman Family.¹ Id. ¶ 14. At the time the transfers were made, they had a combined value in excess of $1.2 million. Id. ¶ 15.

From 1963 through 1966, J. Brickman transferred personal assets into Highland Park Country Club, Inc. ("HPCC"), a company in which the Brickman Family owned 72.5% of the stock. Id. ¶ 16. No consideration was provided for this transfer. Id. From 1964 through 1969, J. Brickman transferred personal assets into Chicagoland Investment Corporation ("Chicagoland"), a company in which the defendants owned 100% of the stock. Id. ¶ 17. No consideration was provided for this transfer. Id.

J. Brickman failed to pay the federal tax liabilities after notice and demand for payment, giving rise to federal tax liens under 26 U.S.C. § 6321. Id. ¶ 18. The liens attached to all property and rights to property belonging to J. Brickman, including the stock of Brickman Mid-West and the assets transferred to HPCC and Chicagoland. Id. ¶ 18. The transfers of corporate stock described above were made subject to the federal tax liens securing all assessments made prior to the dates of transfer. Id. ¶ 19. Additionally, as a result of the October 20, 1977 judgment, the United States gained a judgment lien against the property belonging to J. Brickman which was recorded in Cook County on May 31, 1978. Id. ¶ 20.

J. Brickman died on December 14, 1977. Id. ¶ 21. At the time of his death, J. Brickman's estate consisted of personal property valued at approximately $3,000. Id. ¶ 22. The various transfers of assets from J. Brickman to the companies controlled by the Brickman Family were made without consideration and at a time when J. Brickman was insolvent or was rendered insolvent as a result of the transfers. Id. § 23. After the transfers took place, the remaining assets of J. Brickman were less than the amount necessary to pay his liabilities then owing to the United States. Id.

The United States alleges that the transfers of J. Brickman's assets were made with the intent to delay, hinder or defraud creditors and, therefore, were null and void. Id. § 24. The United States filed suit seeking the following: (A) a determination that the transfers of J. Brickman's assets to the Brickman Family were made subject to a federal tax lien or, in the alternative, that the transfers were fraudulent and void as against the United States, id. ¶ A; (B) judgment that the United States has valid and continuing liens on all property and rights to property belonging to J. Brickman, including property fraudulently conveyed, id. ¶ B; (C) judgment that the Brickman Family became constructive trustees of the property fraudulently conveyed to them by J. Brickman, and, therefore, hold such property, and any proceeds from such property, for the benefit of the United States, id. ¶ C; (D) an accounting by the Brickman Family to determine the value of the property fraudulently conveyed to them by J. Brickman as of the dates of the transfers, and to determine the value of the income from the property subject to the constructive trust, id. ¶ D; and (E) judgment that the Brickman Family members are jointly and severally liable to the United States for the value of the property fraudulently transferred to them by J. Brickman, to the extent that the value of such property does not exceed J. Brickman's liability to the United States. Id. ¶ E.

The Brickman Family subsequently filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The Brickman Family argues that in the absence of assessments against the Brickman Family, the United States' claims are time-barred by 26 U.S.C. § 6501, since the claims were not brought within three years from the date the corporate tax returns were filed. Defs.' Mem. at 1-2. Alternatively, the Brickman Family argues that this Court should dismiss the portion of the complaint seeking to recover transfers made before J. Brickman was assessed transferee liability for the corporate taxes. Id. at 2.

ANALYSIS

Rule 12(b)(6) Standards

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir.1989), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). The only question is whether relief is possible under any set of facts that could be established consistent with the allegations. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). All well-pleaded facts are taken as true, all inferences are drawn in favor of the plaintiff and all ambiguities are resolved in favor of the plaintiff. Id. A Rule 12(b)(6) motion will only be granted if "`it is beyond a doubt that the non-movant can plead no facts that would support his claim for relief.'" Palda v. General Dynamics Corp., 47 F.3d 872, 874 (7th Cir.1995) (quoting Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-102)).

The limited questions presently before this Court are (1) whether the United States' complaint is time-barred, and (2) whether the United States may proceed under a "lien" theory or fraudulent conveyance theory as to transfers made prior to the assessments against J. Brickman.

Statute of Limitations

Section 6501 of the IRC requires the United States to assess taxes within three years after the filing of a return. 26 U.S.C. § 6501(a).² Absent such an assessment, Section 6501 requires a proceeding in court to collect the tax to be commenced within three years after the return was filed. 26 U.S.C. § 6501(a). Where the assessment of any tax has been made within the three year period, Section 6502 requires the United States to commence an action to collect the assessed taxes within six years of the assessment. 26 U.S.C. § 6502(a)(1).³ Where a timely action has been commenced by the United States, the statute of limitations stops running, and the United States can enforce the judgment at any time. United States v. Ettelson, 159 F.2d 193, 196 (7th Cir.1947).

The Brickman Family argues that, because no assessment was made against either the unnamed corporations or the Brickman Family, the United States is time-barred under 26 U.S.C. § 6501(a), applied to "transferees of a...