United States of America v. Hampton

Filing 6

FINDINGS and RECOMMENDATIONS re: Petition for Judicial Approval of Levy on Principal Rsidence. Referred to Judge O'Neill; Objections to F&R due within 14 days from service of the findings and recommendations. signed by Magistrate Judge Barbara A. McAuliffe on 3/1/2013. (Herman, H)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Petitioner,
v.

1: 12-cv-01984-LJO-BAM
FINDINGS AND RECOMMENDATIONS
RE: PETITION FOR JUDICIAL
APPROVAL OF LEVY ON PRINCIPAL
RESIDENCE

LINDA J. HAMPTON,

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Respondent.

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I. INTRODUCTION

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Pending before the Court is the United States' (“Petitioner”) Petition for Judicial

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Approval of Internal Revenue Service Levy On a Principal Residence. (Doc. 2.) Petitioner seeks

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to levy upon Linda J. Hampton’s (“Respondent”) principal residence to satisfy Respondent’s

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unpaid federal income tax liabilities, interest, and penalties for the 1991, 1992, 1997, 1998, 1999,

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2001, 2002, 2003, 2006 and 2009 tax years. For the following reasons, the Court recommends

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that the petition be GRANTED.

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II. DISCUSSION

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This proceeding is brought, and the Court’s jurisdiction arises, pursuant to section, 28

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U.S.C. § 1340 and sections 6334(e)(1) and 7402(a) of the Internal Revenue Code (26 U.S.C.)

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(“Code”).

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By statute, “[i]f any person liable to pay any tax neglects or refuses to pay the same

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within 10 days after notice and demand,” the government may collect the unpaid tax “by levy

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upon all property and rights to property (except such property as is exempt under section 6334)

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belonging to such person or on which there is a lien provided in this chapter for the payment of

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such tax.” 26 U.S .C. § 6331(a). Section 6334 provides in relevant part that, “[a] principal

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residence shall not be exempt from levy if a judge or magistrate of a district court of the United

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States approves (in writing) the levy of such residence.” 26 U.S.C. § 6334(e)(1).
The United States may seek judicial approval of a levy on a taxpayer's principal residence

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pursuant to 26 U.S.C. § 6334(e). In order to obtain such approval, the United States must file a

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petition demonstrating that: (1) the underlying tax liability has not been satisfied, (2) the

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requirements of any applicable law or administrative procedure relevant to the levy have been

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met, and (3) there is no reasonable alternative for collection of the taxpayer's debt. 26 C.F.R §

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301.6334–1(d)(1). “The taxpayer will be granted a hearing to rebut the Government's prima facie

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case if the taxpayer files an objection within the time period required by the court raising a

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genuine issue of material fact demonstrating that the underlying tax liability has been satisfied,

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that the taxpayer has other assets from which the liability can be satisfied, or that the Service did

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not follow the applicable laws or procedures pertaining to the levy.” 26 C.F.R §

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301.6334–1(d)(2). “The taxpayer is not permitted to challenge the merits underlying the tax

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liability in the proceeding.” Id. “Unless the taxpayer files a timely and appropriate objection, the

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court would be expected to enter an order approving the levy of the principal residence property.”

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Id.

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In support of its application, Petitioner submitted the sworn declaration of Revenue

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Officer Josephine Ramos, dated November 27, 2012, and Certified IRS Form 4340 transcripts,

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showing that the Internal Revenue Service (“IRS”) assessed federal income tax, interest, and

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penalties against Respondent. (Doc. 2, Attach. 2, 3.) Moreover, Petitioner submitted proof that

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the IRS properly notified Respondent of her liabilities and made a demand for payment from

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Respondent. Id.

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After the filing of the Petition, the Court issued notice of the petition and an order to

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show case for why the levy should not issue on January 16, 2013. (Doc. 3.) The Order to Show

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Cause was personally served on Respondent. (Doc. 4.) The Order to Show Cause notified

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Respondent of the Petition and informed her that Petitioner sought an order allowing the IRS to

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levy upon real property located at 107 Elmwood Ave., Modesto, CA 95354 (the “Subject

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Property”) to satisfy Respondent’s income tax liabilities. The Court further advised Respondent

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of her right to object to Plaintiff's Petition and ordered her to file any objections in writing with

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the Clerk of Court within twenty-five days of the service of the order. (Doc. 3.) The Order

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advised Respondent that if no timely written objections were filed, the Court would enter an

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order approving an IRS levy on the subject property. Id.
To date, Respondent has not filed any written objections with the Clerk of Court to the

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Petition, and more than twenty-five days have elapsed since the Petition and the Court's Order to

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Show Cause were personally served upon Respondent. Additionally, Respondent did not appear

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at the Order to Show Cause hearing on March 1, 2013. Accordingly, the Court finds that the

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Petition for Judicial Approval of Levy Upon Principal Residence should be granted. See, 26

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C.F.R. § 301.6334–1(d).

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III. RECOMMENDATION

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IT IS HEREBY RECOMMENDED THAT the United States' Petition for Judicial

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Approval of Internal Revenue Service Levy upon the Principal Residence of Respondent, Linda

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J. Hampton, located at 107 Elmwood Ave., Modesto, CA 95354 be APPROVED.

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IT IS FURTHER RECOMMENDED THAT a levy upon Linda J. Hampton’s interests in

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the real property located at 107 Elmwood Ave., Modesto, CA 95354 to satisfy all or part of the

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unpaid federal income taxes, penalties, interest, and other statutory additions for the income tax

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years 1991, 1992, 1997, 1998, 1999, 2001, 2002, 2003, 2006 and 2009, as set forth in paragraph

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five (5) and six (6) of the Government's Petition, which may be executed by any authorized

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officer of the Internal Revenue Service, be APPROVED.

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These findings and recommendations are submitted to the assigned United States District
Judge pursuant to 28 U.S.C. § 636(b)(1) (B). Within fourteen (14) days after the date of these
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Findings and Recommendations, the parties may file written objections with the Court. The

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document should be captioned “Objections to Magistrate Judge's Finding and Recommendation.”

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The parties are advised that failure to file objections within the specified time may waive the

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right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).

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IT IS SO ORDERED.
Dated:
10c20k

March 1, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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