United States of America v. Capitol Waste, Inc. et al

Filing 13

ORDER signed by Judge John A. Mendez on 01/05/2009 GRANTING 11 Stipulation For Entry of Order Granting Preliminary Injunction.(Streeter, J)

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Robb Hewitt, Attorney at Law (CB#158751) LAW OFFICES OF ROBB HEWITT 1317 ­ 15th Street, Suite A Sacramento, CA 95814 [phone] Attorney for Capitol Waste, Inc. Iva Whitmire, Kenneth R. Whitmire

IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 SACRAMENTO DIVISION 9 10 11 12 13 14 15 16 IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff, UNITED 17 STATES OF AMERICA, and each defendant CAPITOL WASTE, INC. , IVA WHITMIRE, and 18 KENNETH R. WHITMIRE, (hereinafter the "Parties"), through their respective counsel, as 19 follows: 20 WHEREAS: the Defendants and each of them agree that in order to save the parties extensive 21 costs, legal fees and resources required to litigate the issues raised in plaintiff's complaint and 22 request for temporary and permanent injunctive relief; and 23 WHEREAS the parties agree that there is a strong likelihood of the Court granting the United 24
STIPULATION FOR PRELIMINARY INJUNCTION

UNITED STATES OF AMERICA,

) ) Plaintiff, ) vs. ) ) CAPITOL WASTE, INC. IVA WHITMIRE, ) KENNETH R. WHITMIRE, ) ) Defendants. ) ) )

Case No.: 2:08-CV-02378-JAM-EFB STIPULATION FOR ENTRY OF ORDER GRANTING PRELIMINARY INJUNCTION Hearing Date: January 14, 2009 Time: 9:00 am Place Courtroom 6, 14th Floor Before: Judge John A. Mendez

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LAW OFFICES OF ROBB HEWITT 1317 Fifteenth Street, Suite A Sacramento, CA 95814 [phone]

3859348.1

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States Motion for Preliminary Injunction; NOW THEREFORE: the Parties agree that, on the Court's approval, a preliminary injunction issue enjoining Defendants herein as follows: A The Court ORDERS that the Defendants (individually and doing business under any other

name or entity), and their representatives, agents, servants, or employees are enjoined from failing to withhold and pay over to the IRS all present and future employment taxes, including federal income, FICA, and FUTA taxes, required by law as they become due from time to time; B. The Court ORDERS the Defendants to file accurate and timely present and future

employment and unemployment tax returns (including Forms 940 and 941), and Forms W-2 and to send copies of such returns and Forms W-2 to counsel for the United States at the same time that they file the originals; C. The Court ORDERS, effective immediately, that Defendants, within three days of making

each Capitol Waste payroll, make employment tax deposits with an appropriate financial institution; and by the next business day following such deposit, send by fax to IRS Revenue Officer Charles Duff (at 916-974-5976) or his designee a receipt evidencing the deposit as well as a completed worksheet showing the method of calculation and the amount for such deposit; D. The Court ORDERS that Defendants file complete and accurate Forms 941 for Capitol

Waste for all quarters beginning with the last quarter of 2000, file complete and accurate Forms 940 for Capitol Waste for all years after 1999, file complete and accurate Forms 1120 for Capitol Waste for all years after 2000, all within 90 days of the entry of this order. Within seven days of filing of such returns with the IRS, Defendants shall file a sworn statement with the Court declaring that such returns have been filed with the IRS; E. The Court ORDERS the Defendants to file with the Social Security Administration and

issue to their employees, at their last known addresses, complete and accurate Forms W-2 for the
STIPULATION FOR PRELIMINARY INJUNCTION

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LAW OFFICES OF ROBB HEWITT 1317 Fifteenth Street, Suite A Sacramento, CA 95814 [phone]

3859348.1

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years 2005 and 2007 within 90 days of the entry of the preliminary injunction, and to send copies of these Forms W-2 to counsel for the United States; F. The Court ORDERS that Defendants Kenneth and Iva Whitmire file complete and accurate

Forms 1040 for all years after 2000, within 90 days of the entry of this order. Within seven days of filing of such returns with the IRS, Defendants Kenneth and Iva Whitmire shall file a sworn statement with the Court declaring that such returns have been filed with the IRS; G. The Court ORDERS that Defendants (individually and doing business under any other

name or entity), and their representatives, agents, servants, or employees are enjoined from transferring any money or property to any other entity in order to have the salaries or wages of the Defendants' employees paid by the transferee entity (excepting the use by Defendants of bona fide, independent and licensed outside payroll services, subcontractors, or independent contractors or for persons or entities for which a Form 1099 is properly and lawfully issued by Defendants); H. The Court ORDERS the Defendants (individually and doing business under any other name

or entity), and their representatives, agents, servants, or employees, are enjoined from assigning or transferring any property or property rights, or making any disbursements for any purpose, from the date of the preliminary injunction is issued, until the present or future employment tax liabilities, incurred by Defendants, including federal income and FICA taxes, that accrue after the injunction date, are paid to the IRS; and I. And further, the Court ORDERS Iva Whitmire, Kenneth Whitmire or any person or entity

authorized by them to sign checks or make disbursements via money order, or other method, from Capitol Waste's bank accounts, cash funds or other property, to file a statement within fourteen (14) days of the date of the preliminary injunction is issued with IRS Revenue Officer Charles Duff or his designee to the effect that they have read the preliminary injunction issued by this Court, that they will personally determine, for each pay period, that FICA and withholding income taxes, as
STIPULATION FOR PRELIMINARY INJUNCTION

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LAW OFFICES OF ROBB HEWITT 1317 Fifteenth Street, Suite A Sacramento, CA 95814 [phone]

3859348.1

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they become due, are fully paid to the IRS prior to signing checks or otherwise disbursing funds; and, that they will not assign or transfer any property, or rights of property, of Capitol Waste, unless all employment taxes (including federal withholding and FICA taxes) for every pay period from the date of the preliminary injunction was issued, have been paid. DATED: December _____, 2008 ADAIR F. BOROUGHS Attorney for The United States of America

7 DATED: December _____, 2008 8 9 10 IT IS SO ORDERED 11 DATED: January 5, 2009 12 13 14 15 16 17 18 19 20 21 22 23 24
STIPULATION FOR PRELIMINARY INJUNCTION

ROBB HEWITT Attorney for Capitol Waste, Inc., Iva Whitmire And Kenneth R. Whitmire

JUDGE OF THE UNITED STATES DISTRICT COURT /s/ John A. Mendez___________ The Honorable John A. Mendez

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LAW OFFICES OF ROBB HEWITT 1317 Fifteenth Street, Suite A Sacramento, CA 95814 [phone]

3859348.1