Capitol Waste, Inc. v. A Greener Globe, et al.,
Filing
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MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr on 4/14/11 ORDERING the United States' motion for summary judgment 14 is GRANTED. The United States has an interest in all property and property rights of plaintiff by virtue of its federal tax liens against plaintiff, and any proceeds due to plaintiff from a partition of the long-term lease at issue should be distributed to the United States for application to plaintiff's unpaid federal tax liabilities. (Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CAPITOL WASTE, INC.,
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Plaintiff,
NO. 2:10-cv-866 FCD EFB
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v.
MEMORANDUM AND ORDER
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A GREENER GLOBE, aka A GREENER
GLOBE CORPORATION, aka A
GREENER GLOBE, INC., aka A
GREENER GLOBE, DANIEL G.
SHEEHAN, dba A GREENER GLOBE,
JACKLYN C. SHEEHAN, dba A
GREENER GLOBE; WESTERN
HIGHLAND MORTGAGE FUND1, LLC;
UNITED STATES DEPARTMENT OF
THE TREASURY INTERNAL REVENUE
SERVICE, NORTHERN CALIFORNIA
COLLECTION SERVICE, INC. et
al.,
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Defendants.
_________________________/
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This matter is before the court on defendant the United
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States of America’s (the “United States”) motion for summary
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judgment pursuant to Rule 56 of the Federal Rules of Civil
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Procedure.
By this motion the United States seeks determinations
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(1) that United States has an interest in all property and
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property rights of Capitol Waste (“plaintiff”) by virtue of its
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federal tax liens against plaintiff, including any interest
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plaintiff may have in the property located at 901 North Harding
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Boulevard, Roseville, CA (the “Property”); and (2) that any
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proceeds due to plaintiff from a partition of the long-term lease
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at issue should be distributed to the United States for
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application to the unpaid federal tax liabilities of plaintiff.
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(Def.’s Mot. for Summ. J. [“Def.’s Mot.”], filed Feb. 25, 2011
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[Docket # 14-2], at 2.)
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statement of non-opposition to the United States’ motion for
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summary judgment.1
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below,2 the United States’ motion for summary judgment is
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GRANTED.
(Docket #17.)
For the reasons set forth
BACKGROUND3
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On March 25, 2011, plaintiff filed a
Plaintiff brought this suit, inter alia, to partition the
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parties’ interests by sale of a long-term lease on the property
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located at 901 North Harding Boulevard, Roseville, CA.
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Notice of Removal [“DNR”], filed April 13, 2010 [Docket # 1-1],
(Def.’s
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Plaintiff’s certificate of service indicates that all
defendants have been served. (DNR, at Ex. B.) Similarly, the
United States’ certificate of service indicates that all parties
have been properly served with this motion. (See Docket 14-13;
Def.’s Statement of Undisputed Facts (“UF”) [Docket # 14-1],
filed Feb. 25, 2011.) However, no other defendant has filed an
opposition to the motion or otherwise responded.
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Because oral argument will not be of material
assistance, the court orders the matter submitted on the briefs.
E.D. Cal. L.R. 230(g).
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Unless otherwise noted, the facts herein are
undisputed. (See UF.)
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¶¶ 20, 21. 34.)
A duly authorized delegate of the Secretary of Treasury made
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assessments against plaintiff for federal employment tax (Form
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941) liabilities for the quarters ending June 30, 2001, September
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30, 2001, December 31, 2001, June 30, 2002, September 30, 2002,
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December 31, 2002, March 31, 2003, June 30, 2003, September 30,
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2003, December 31, 2003, March 31, 2004, June 20, 2004, September
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30, 2004, December 31, 2004, March 31, 2005, June 30, 2005,
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September 30, 2005, December 31, 2005, March 31, 2005, June 30,
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2006, September 30, 2006, December 31, 2006, March 31, 2007, June
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30, 2007, and September 30, 2007.
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Revenue Service (“IRS”) gave plaintiff proper notice and demand
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for payment of these liabilities.
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(UF ¶¶ 1-6.)
The Internal
(Id.)
A duly authorized delegate of the Secretary of Treasury also
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made assessments against plaintiff for federal unemployment tax
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(Form 940) liabilities for tax years 2000, 2001, 2002, 2003,
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2004, 2005, and 2006.
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proper notice and demand for payment of these liabilities.
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(Id. ¶¶ 7-10.)
The IRS gave plaintiff
(Id.)
On May 2, 2007, the IRS properly filed a Notice of Federal
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Tax Lien against plaintiff with respect to its unpaid federal
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employment tax liabilities for quarters ending September 30,
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2004, and December 31, 2004, with the Placer County Recorder.
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(Id. ¶ 11.)
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Notice of Federal Tax Lien against plaintiff with respect to its
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unpaid federal employment tax liabilities for quarters ending
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December 31, 2000 through June 30, 2004 and September 30, 2004
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through September 30, 2007, with the Placer County Recorder.
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(Id. ¶¶ 12, 13.)
On December 23, 2008, the IRS properly filed a
The IRS also filed a Notice of Federal Tax Lien
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against plaintiff with respect to its unpaid federal unemployment
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tax liabilities for the tax years ending December 31, 2000
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through December 31, 2006.
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(Id. ¶¶ 13, 14.)
Plaintiff has not fully paid its federal employment tax
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liabilities for the quarters ending June 30, 2001, through
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September 2007 or its federal unemployment tax liabilities for
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the tax years ending December 31, 2000 through December 31, 2006.
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(Id. ¶¶ 15, 16.)
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property and property rights of plaintiff by virtue of its
The United States has an interest in all
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federal tax liens against plaintiff.
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STANDARD
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The Federal Rules of Civil Procedure provide for summary
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judgment where “the movant shows that there is no genuine dispute
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as to any material fact and the movant is entitled to judgment as
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a matter of law.”
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viewed in the light most favorable to the nonmoving party.
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Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
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(Id. ¶ 17.)
Fed. R. Civ. P. 56(a).
The evidence must be
See
The moving party bears the initial burden of demonstrating
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the absence of a genuine issue of fact.
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Catrett, 477 U.S. 317, 325 (1986).
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meet this burden, “the nonmoving party has no obligation to
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produce anything, even if the nonmoving party would have the
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ultimate burden of persuasion at trial.”
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Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000).
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However, if the nonmoving party has the burden of proof at trial,
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the moving party only needs to show “that there is an absence of
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evidence to support the nonmoving party’s case.”
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477 U.S. at 325.
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See Celotex Corp. v.
If the moving party fails to
Nissan Fire & Marine
Celotex Corp.,
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ANALYSIS
Under 26 U.S.C. § 6321, the United States obtains a lien
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“upon all property and rights to property, whether real or
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personal, belonging to” any taxpayer who neglects or refuses to
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pay taxes after notice and demand.
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arises as of the date of assessment and continues until the tax
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liability is extinguished.
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has submitted Account Transcripts showing assessments made
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against Capitol Waste and the dates these assessments were made.
26 U.S.C. § 6321.
26 U.S.C. § 6322.
The lien
The United States
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(Boroughs Decl., filed Feb. 25, 2011 [Docket #14-3], Ex. B-G.)
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These transcripts show that notice and demand of payment was
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properly given to plaintiff.
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has not paid these federal tax liabilities.
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such, these federal tax liens continue to the present.
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U.S.C. § 6322.
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(See id.)
Plaintiff admits that it
(UF ¶¶ 15, 16.)
As
See 26
Absent a specific provision to the contrary, “priority for
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the purposes of federal law is governed by the common-law
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principle that ‘first in time is the first in right.’”
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States v. McDermott, 507 U.S. 447, 449 (1993) (quoting United
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States v. New Britain, 347 U.S. 81, 85 (1954)) (interpreting 26,
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U.S.C. § 6323).
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“perfected” or “choate,” meaning that the “‘the identity of the
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lienor, the property subject of the lien and the amount of the
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lien are established.’”
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U.S. at 84).
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Federal Tax Lien against plaintiff with the Placer County
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Recorder to perfect these federal tax liens.
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filing of a Notice of Federal Tax Lien “renders the federal tax
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To be first in time, a creditor lien must be
Id. at 449-50 (quoting New Britain, 347
In the present case, the IRS filed Notices of
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(UF ¶¶ 11-14.)
The
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lien extant for ‘first in time’ priority purposes . . . .”
Id.
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at 453.
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motion, none of plaintiff’s other creditors have responded or
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otherwise submitted evidence disputing the seniority status of
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United States’ federal tax lien.
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proceeds due to plaintiff from a partition of the long-term lease
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at issue should be distributed to the United States.
Despite being having been properly noticed of this
(UF ¶ 18.)
As such, any
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CONCLUSION
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For the foregoing reasons, the United States’ motion for
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summary judgment is GRANTED.
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in all property and property rights of plaintiff by virtue of its
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federal tax liens against plaintiff, and any proceeds due to
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plaintiff from a partition of the long-term lease at issue should
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be distributed to the United States for application to
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plaintiff’s unpaid federal tax liabilities.
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The United States has an interest
IT IS SO ORDERED.
DATED: April 14, 2011
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FRANK C. DAMRELL, JR.
UNITED STATES DISTRICT JUDGE
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