United States of America v. Krieg et al

Filing 22

ORDER by Judge Charles R. Breyer Vacating Hearing and Granting 17 Motion for Summary Judgment. (crblc1, COURT STAFF) (Filed on 8/1/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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UNITED STATES OF AMERICA,
Plaintiff,

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No. C14-01265 CRB
ORDER VACATING HEARING AND
GRANTING SUMMARY JUDGMENT

v.
KEITH KENNETH KRIEG,
Defendant.

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The government filed a Motion for Summary Judgment in this tax case. See Mot.

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(dkt. 17). When Defendants Keith and Linda Krieg failed to timely oppose the government’s

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Motion, the Court ordered Defendants to show cause why the government’s Motion should

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not be granted. See OSC (dkt. 20). The Court advised Defendants that “[f]ailure to timely

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respond to this Order could result in summary judgment being entered for the government.”

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Id. Defendants have failed to timely respond to the Court’s Order. The Court finds this

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matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b),

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VACATES the hearing currently set for August 8, 2014, and GRANTS the Motion.

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The Court notes that a “motion for summary judgment cannot be granted simply

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because there is no opposition.” See Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th

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Cir. 1993) (quoting Hibernia Nat’l Bank v. Administracion Central Sociedad Anonima, 776

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F.2d 1277, 1279 (5th Cir. 1985)). The Court’s Order does not grant the government’s

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Motion because of Defendants’ failure to oppose it, but because (1) Defendants failed to

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respond to the Court’s show cause order, and (2) the Court has not identified either a genuine

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issue of material fact or any other reason the government is not entitled to judgment as a

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matter of law. See Fed. R. Civ. P. 56(a); see also Carmen v. San Francisco Sch. Dist., 237

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F.3d 1026, 1031 (9th Cir. 2001) (“[t]he district court need not examine the entire file for

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evidence establishing a genuine issue of fact, where the evidence is not set forth in the

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opposing papers with adequate references so that it could conveniently be found.”).

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The government’s Motion raises two questions.

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The first question is whether the government has taxing jurisdiction over citizens and

United States District Court
For the Northern District of California

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residents of the United States. See Mot. at 2. The answer to that question, despite

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Defendants’ protestations that the IRS has no jurisdiction over them because they are only

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residents of the “California Republic,” see Answer (dkt. 9) at 2; Conditional Acceptance to

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Complaint (dkt. 16) at 2; is clearly yes, see U.S. Const. amend. XVI; IRC § 6012; Lovell v.

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United States, 755 F.2d 517, 519 (7th Cir. 1984) (“All individuals, natural or unnatural, must

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pay federal income tax on gross income.”).

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The second question is whether the government is entitled to reduce Defendants’

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assessments to judgment for tax years 1998 and 2001 (for Mr. Krieg) and 1997 and 1998 (for

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Ms. Krieg). “The government can usually carry its initial burden . . . merely by introducing

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its assessment of tax due. Normally, a presumption of correctness attaches to the assessment,

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and its introduction establishes a prima facie case. The presumption does not arise unless it

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is supported by a minimal evidentiary foundation.” United States v. Stonehill, 702 F.2d

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1288, 1293 (9th Cir. 1983) (internal citations omitted). In this case, the government has

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submitted Certificates of Assessments and Payments (Form 4340s) for Mr. Krieg for 1998

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and 2001, and for Ms. Krieg for 1997 and 1998. See Moore Decl. (dkt. 18) Exs. 1-4. These

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Form 4340s “are admissible evidence that valid assessments have been made.” See Hughes

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v. United States, 953 F.2d 531, 540 (9th Cir. 1992). The government has made a prima facie

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case. See Oliver v. United States, 921 F.2d 916, 919 (9th Cir. 1990). Defendants have failed

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to show by a preponderance of the evidence that judgment should not be entered against
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them. See Hardy v. Comm’r, 181 F.3d 1002, 1004-05 (9th Cir. 1999) (explaining burden

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shift); United States v. Molitor, 337 F.2d 917, 922 (9th Cir. 1964) (“if [taxpayer] had

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adduced no evidence contesting the prima facie proof . . . the United States would have been

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entitled to judgment”). Accordingly, the government is entitled to reduce Defendants’

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assessments to judgment of $12,513.75 for Mr. Krieg, and $141,652.65 for Ms. Krieg.1

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For the foregoing reasons, the government’s Motion is GRANTED.

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IT IS SO ORDERED.

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Dated: August 1, 2014
CHARLES R. BREYER
UNITED STATES DISTRICT
JUDGE

United States District Court
For the Northern District of California

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These sums are calculated as of March 19, 2014, and do not account for interest, penalties, and statutory additions.
See Mot. at 5.

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