United States of America v. Moses et al

Filing 21

MEMORANDUM OPINION AND ORDER that the United States's 17 Motion for Summary Judgment is GRANTED. Signed by Honorable William Keith Watkins on 5/2/2011. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
BECKY MOSES, et al.,
Defendants.

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) CASE NO. 2:10-CV-594-WKW [WO]
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MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff United States’s Motion for Summary Judgment and
Memorandum of Law, which is accompanied by an evidentiary submission. (Doc. # 17.)
No response was filed by Defendants in accordance with the deadline established in the
General Briefing Order. (Doc. # 12.) The court nonetheless conducted an independent
review of the record consistent with the familiar standard governing summary judgment.
Having done so, the court finds that the United States’s Motion for Summary Judgment is
due to be granted.
I. JURISDICTION AND VENUE
Subject matter jurisdiction over this action is proper pursuant to 26 U.S.C. § 7402(a).
The parties do not contest personal jurisdiction and venue, and the court finds adequate
allegations in support of both.

II. STANDARD OF REVIEW
On summary judgment, the facts and inferences must be viewed in the light most
favorable to the non-movant. See United States v. One Piece of Prop., 5800 S.W. 4th Ave.,
Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). “Summary judgment is appropriate if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”

Greenberg v. BellSouth

Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation and internal
quotation marks omitted); see Fed. R. Civ. P. 56(a) (“The court shall grant summary
judgment if the movant shows there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law.”). “Thus, the district court cannot base the entry of
summary judgment on the mere fact that the motion was unopposed, but, rather, must
consider the merits of the motion.” One Piece of Prop., 5800 S.W. 4th Ave., Miami, Fla., 363
F.3d at 1101. The court, however, “need not sua sponte review all of the evidentiary
materials on file at the time the motion is granted, but must ensure that the motion itself is
supported by evidentiary materials.” Id.
The party moving for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of [the
record, including pleadings, discovery materials and affidavits], which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating
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there is no dispute of material fact or by showing that the nonmoving party has failed to
present evidence in support of some element of its case on which it bears the ultimate burden
of proof. Id. at 322-24.
If the movant meets its evidentiary burden, the burden shifts to the nonmoving party
to establish, with evidence beyond the pleadings, that a genuine issue material to each of its
claims for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
Fed. R. Civ. P. 56(c). When the nonmovant fails to set forth specific facts supported by
appropriate evidence sufficient to establish the existence of an element essential to its case
and on which the nonmovant will bear the burden of proof at trial, summary judgment is due
to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 323 (“[F]ailure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.”).
III. BACKGROUND
On July 13, 2010, the United States timely commenced this action against Defendants
Becky Moses and William R. Moses to reduce to judgment unpaid federal tax assessments
for taxes, penalties and interest.1 (Compl. (Doc. # 1).) The evidence, construed in the light
most favorable to Defendants, is as follows.
Defendants have unpaid federal tax liabilities for tax years 1992, 1993, 1994 and
1999. The Certificates of Assessments, Payments, and Other Specified Matters (Forms
1

The ten-year statute of limitations was tolled for a portion of the time that Defendants’ offerin-compromise was pending, thereby rendering the filing of this action timely. See 26 U.S.C. §§ 6502,
6503, 6331(k); (see also U.S.’s Mot. Summ. J. 5-6.)

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4340), attached to the United States’s Motion for Summary Judgment, reflect the amounts
of the assessments subject to collection from Defendants for the tax years at issue. (Forms
4340 (Exs. to Doc. # 17).) A delegate of the Secretary of Treasury assessed the income tax
liability reported on Defendants’ joint tax returns, along with penalties and interest. (John
Armstrong Decl. ¶ 3 (Ex. to Doc. # 17).) Notice of these assessments has been given to
Defendants, and demand for payment has been made as provided by law. (Armstrong Decl.
¶ 5.) Defendants have failed, however, to make full payment of the assessed taxes and
penalties. (Armstrong Decl. ¶ 6.) Additionally, fees, interest and all statutory additions
thereafter provided for by law have accrued on the assessed amounts and will continue to
accrue until the liabilities are paid in full. (Armstrong Decl. ¶ 6.) As of February 4, 2011,
Defendants owed the United States $230,746.95, plus fees, interest and all statutory
additions. (Armstrong Decl. ¶¶ 6,8.) Defendants do not contest the amount owed, but assert
that they are paying all they can pursuant to a payment plan set up by the Internal Revenue
Service. (Defs.’ Letter (Ex. to Doc. # 17).)
IV. DISCUSSION
“In reducing an assessment to judgment, the Government must first prove that the
assessment was properly made.” United States v. White, 466 F.3d 1241, 1248-49 (11th Cir.
2006). “The Government’s submission of a Form 4340 establishes such a presumption.” Id.
“Once the Form is provided, the taxpayer must then prove that the assessment is erroneous
in order to prevail.” Id.

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Here, the United States has submitted Form 4340 Certificates of Assessments,
delineating Defendants’ tax liabilities, penalties and interest assessed for the tax years 1992,
1992, 1993 and 1999. This submission creates a presumption that the assessments of tax
liabilities are valid. Defendants have produced no evidence to overcome the presumptive
validity of the Form 4340 Certificates of Assessments. Accordingly, they have not created
a genuine issue of material fact for trial, and the United States’s Motion for Summary
Judgment is due to be GRANTED.
V. ORDER
For the foregoing reasons, it is ORDERED that the United States’s Motion for
Summary Judgment (Doc. # 17) is GRANTED.
An appropriate final judgment will be entered.
DONE this 2nd day of May, 2011.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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