USA v. Berryman et al

Filing 106

ORDER it is ORDERED that the Recommendation of United States Magistrate Judge Mix ECF No. 99 is AFFIRMED AND ADOPTED. The Objection ECF No. 101 is OVERRULED. In accordance therewith, it is FURTHER ORDERED Plaintiffs Renewed Motion for Summary J udgment Against Nancy D. Berryman ECF No. 85 is DENIED as to tax year 2000. It is GRANTED as to tax year 1997. Thus, judgment shall enter in favor of Plaintiff and against Defendant Berryman in the amount of $395,136.63 as of December 2, 20 13, plus other statutory additions from December 2, 2013, in accordance with 28 U.S.C. § 1961(c)(1) and 26 U.S.C. § 6621, until judgment is paid in full. It is FURTHER ORDERED that the Motion is GRANTED and that an Order of Foreclosure and Decree of Sale of the Subject Property shall be entered in favor of Plaintiff, by Judge Wiley Y. Daniel on 5/16/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02708-WYD-KLM
UNITED STATES OF AMERICA,
Plaintiff,
v.
NANCY D. BERRYMAN;
THE TEMPLE OF THE UNVEILED GOD;
THE OFFICE OF THE OVERSEER OF DEDICATION TO ENLIGHTENMENT; and
her successors, a corporation sole,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

I.

INTRODUCTION AND BACKGROUND
This matter is before the Court on Plaintiff’s Renewed Motion for Summary

Judgment Against Nancy D. Berryman (the “Motion”). (ECF No. 85). The Motion was
referred to Magistrate Judge Mix for a Recommendation by Order of Reference.
Magistrate Judge Mix issued a Recommendation on March 10, 2014, which is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b),
D.C.COLO.LCivR. 72.1. Magistrate Judge Mix recommends therein that Plaintiff’s
Motion be granted in part and denied in part. (Recommendation at 8).
On October 18, 2011, Plaintiff United States of America brought this civil action
against the Defendants to reduce federal income tax assessments to judgment and to
foreclose federal tax liens on real property and water rights. Plaintiff asserts proper

jurisdiction by this Court pursuant to 28 U.S.C. §§ 1331, 1340, and 1345 and to 26
U.S.C. §§ 7402 and 7403. Plaintiff states that venue is proper pursuant to 28 U.S.C.
§§ 1391 and 1396 on the basis that the real property at issue is located within this
District. The real property that is the subject of this action (“Subject Property”) is
referred to as Parcel A and Parcel B. Parcel A is vacant land located in Larimer County,
Colorado, and Parcel B is commonly referred to as 3295 Tunnel Road, Estes Park, CO
80517.
On October 15, 2012, Plaintiff filed its initial motion for summary judgment, which
was granted by a recommendation and later affirmed by Order of the Court. (ECF Nos.
66 and 77). Consequently, “default judgment was entered against Defendants Temple
and Overseer, and Plaintiff’s request for summary judgment was granted regarding
Defendant Berryman’s tax liability for the tax years 1999, 2001, 2002, 2003, 2004, 2005,
and 2006 in the amount of $142,595.58, plus other statutory additions from October 1,
2012, in accordance with 28 U.S.C. § 1961(c)(1) and 26 U.S.C. § 6621, until judgment
is paid in full.” (Recommendation at 3). Additionally, the initial motion for summary
judgment was “granted with respect to Defendant Berryman’s liability for tax years 1997
and 2000 but denied without prejudice regarding the validity of the requested amount of
tax liability for those years.” (Recommendation at 3). “Plaintiff was then provided with
the opportunity to file a renewed motion for summary judgment regarding the amount of
Defendant Berryman’s liability for the years 1997 and 2000. Plaintiff did so on
November 21, 2013 by filing the present Motion.” (Recommendation at 3).
Thus, the final issue pending before the Court is “the precise amount of
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Defendant Berryman’s liability for the tax years 1997 and 2000. Plaintiff also seeks an
order of foreclosure on the Subject Property once the amount of tax liability has been
established.” (Recommendation at 3) (internal citations omitted).
II.

RECOMMENDATION
A.

Standard of Review

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may
grant summary judgment where "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and the . . . moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220
F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, the court must ‘view
the evidence and draw all reasonable inferences therefrom in the light most favorable to
the party opposing summary judgment.’” Atlantic Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). All doubts must be
resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell
Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
“[The plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). “In such a situation, there can be ‘no genuine issue as to any
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material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23.
The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving
party has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Id. at 323.
B.

Amount of Tax Liability
1.

Tax Year 2000

In the pending Motion, Plaintiff first concedes that Defendant Berryman no longer
has any outstanding liability with respect to the assessments made against her for tax
year 2000. Thus, Magistrate Judge Mix recommends that Plaintiff’s request for
summary judgment be denied for tax year 2000.
2.

Tax Year 1997

Second, Plaintiff contends that Defendant Berryman owes $395,136.63 in back
taxes, accrued interest, and accrued failure-to-pay penalties for tax year 1997.
Following her careful review of the parties’ filings and admissible evidence, Magistrate
Judge Mix determined that the government’s assessment of Defendant Berryman’s tax
liability for 1997 is entitled to a presumption of correctness.” (Recommendation at 6).
She further noted that “[u]pon a close analysis of the Form 4340 presented by Plaintiff
for tax year 1997, the INTSTD program evidence presented by Plaintiff, and the figures
cited in Plaintiff’s Motion, the Court is able to assure itself that the outstanding balance
claimed in Plaintiff’s Motion is clear on the face of the Form 4340.” (Recommendation
at 6). Magistrate Judge Mix went on to reject Defendant Berryman’s arguments in
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opposition finding them frivolous and conclusory. Magistrate Judge Mix noted that none
of Defendant Berryman’s arguments concern the amount of her liability. Rather, they
primarily concern whether she is liable at all, an issue which the Court has already
examined and rejected. (Recommendation at 6-7).
After carefully weighing the admissible evidence, Magistrate Judge Mix
concluded that the Motion for summary judgment should be granted for tax year 1997
because Plaintiff satisfied “its burden of showing that no genuine issue of material facts
exist and that it is entitled to judgment as a matter of law concerning the amount of
Defendant Berryman’s tax liability for tax year 1997.” (Recommendation at 7).
Accordingly, Magistrate Judge Mix “recommends that Plaintiff’s request for summary
judgment be granted for tax year 1997 in the amount of $395,136.63 as of December 2,
2013, plus other statutory additions from December 2, 2013, in accordance with 28
U.S.C. § 1961(c)(1) and 26 U.S.C. § 6621, until judgment is paid in full.”
(Recommendation at 8). Magistrate Judge Mix further recommends that the Motion be
granted to the extent that “Plaintiff seeks an order of foreclosure on the Subject Property
pursuant to 26 U.S.C. § 7403(c).” (Recommendation at 7-8).
Magistrate Judge Mix advised the parties that they had fourteen (14) days to
serve and file written, specific objections to the Recommendation. (Recommendation at
44). Defendant Berryman filed timely objections to the Recommendation granting in
part and denying in part the pending Motion, which necessitates a de novo
determination as to those specified proposed findings or recommendations to which
objection is made since the nature of the matter is dispositive. Fed. R. Civ. P. 72(b); 28
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U.S.C. § 636(b)(1).
III.

OBJECTIONS
On March 28, 2014, Defendant Berryman filed timely objections to Magistrate

Judge Mix’s Recommendation. As a preliminary matter, I point out that it was difficult to
determine the nature of Defendant Berryman’s specific objections to Magistrate Judge
Mix’s Recommendation. The party filing objections must specifically identify those
findings or recommendations to which the objections are being made. The District
Court need not consider frivolous, conclusive or general objections. Further, at least
one court has stated that arguments not provided to the attention of the magistrate
judge will not be considered in connection with review of nondispositive motions.1
Claytor v. Computer Associates Intern., Inc., 211 F.R.D. 665, 667 (D. Kan. 2003). “The
court reiterates that this is not a de novo review permitting a ‘second shot’ based on
new arguments.” Id. (citing City of Wichita v. Aero Holdings, Inc., 192 F.R.D. 300, 302
(D. Kan. 2000)).
Here, Defendant Berryman’s objections consist of numerous conclusory (often
unintelligible) statements without any supporting argument or evidence. Defendant
Berryman spends considerable time reiterating her assertions that Plaintiff’s tax
assessments are invalid due to “irregularities and fraudulent entries in the Individual
Master Files of the IRS.” (Objection at 3). As Magistrate Judge Mix noted, these

1

In her objection, Defendant Berryman contends that “Plaintiff has exceeded the time
limits on assessments” and inquires whether Plaintiff is “trying to collect a tax well beyond the
statute of limitations?” (Objection at 2). Based on my review, this issue was not raised before
the Magistrate Judge, and thus, I decline to address it here.

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arguments have previously been rejected in this case as meritless and frivolous.
Accordingly, I summarily overrule all of Defendant Berryman’s objections as they relate
to tax protestor arguments that have already been rejected by a multitude of courts or
concern the question of Defendant Berryman’s tax liability, an issue already decided in
previous orders. (ECF Nos. 66 and 77).
I find Magistrate Judge Mix’s Recommendation that summary judgment be
denied as to tax year 2000 and granted as to tax year 1997 to be proper and just. I
agree that Defendant Berryman has no outstanding liability for assessments made
against her for tax year 2000. I further agree that Plaintiff provided sufficient evidence
to show the outstanding balance claimed for tax year 1997 is correct. I further affirm
Magistrate Judge Mix’s Recommendation granting Plaintiff’s request for an order of
foreclosure on the Subject Property pursuant to 26 U.S.C. § 7403(c).
IV.

CONCLUSION
After carefully reviewing Magistrate Judge Mix’s Recommendation and the

objections, I agree with Magistrate Judge Mix that Plaintiff’s Motion for Summary
Judgment should be granted in part and denied in part for the reasons stated in both the
Recommendation and this Order. Magistrate Judge Mix’s Recommendation is
thorough, well reasoned and is adopted. Accordingly, the objections are overruled.
For the reasons stated above, it is
ORDERED that the Recommendation of United States Magistrate Judge Mix
(ECF No. 99) is AFFIRMED AND ADOPTED. The Objection (ECF No. 101) is
OVERRULED. In accordance therewith, it is
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FURTHER ORDERED Plaintiff’s Renewed Motion for Summary Judgment
Against Nancy D. Berryman (ECF No. 85) is DENIED as to tax year 2000. It is
GRANTED as to tax year 1997. Thus, judgment shall enter in favor of Plaintiff and
against Defendant Berryman in the amount of $395,136.63 as of December 2, 2013,
plus other statutory additions from December 2, 2013, in accordance with 28 U.S.C. §
1961(c)(1) and 26 U.S.C. § 6621, until judgment is paid in full. It is
FURTHER ORDERED that the Motion is GRANTED and that an Order of
Foreclosure and Decree of Sale of the Subject Property shall be entered in favor of
Plaintiff.
Dated: May 16, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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