USA v. Goldston et al

Filing 65

ORDER approving 62 Stipulation between First Pinkston, LP, Gunnison County and the United States. By Judge Raymond P. Moore on 12/23/2014. (Attachments: # 1 stipulation)(tscha, )

DAVID A. HUBBERT
Deputy Assistant Attorney General
AARON M. BAILEY
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
Washington, D.C. 20044
[phone]
[e-mail]
Of Counsel
JOHN F. WALSH
United States Attorney
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-CV-1565-RM-KLM
UNITED STATES OFAMERICA,
Plaintiff,
v.
DAVID W. GOLDSTON, individually and
as Trustee of Old Times Holding Trust and
Trustee of High Mountain Holding Trust:
NANCY S. GOLDSTON, individually and as
Trustee of Old Times Holding Trust and
Trustee of High Mountain Holding Trust;
JANET SENNEKER; JAMES SENNEKER;
and W.W. INVESTMENT GROUP, LLC, as
Trustee of Old Times Holding Trust and
Trustee of High Mountain Holding Trust;
FIRST PINKSTON L.P.; GUNNISON COUNTY,
Defendants.

STIPULATION BETWEEN THE UNITED STATES, FIRST PINKSTON L.P. AND GUNNISON
COUNTY

12216929.1

IT IS HEREBY STIPULATED AND AGREED by the United States of America
(“United States”), defendant First Pinkston L.P. (“First Pinkston”), and defendant Gunnison
County, that:
1. The United States filed its action to foreclose federal tax liens on certain residential
real property located at Lots 2 and 3 of the Davenport Subdivision in Gunnison County, more
particularly described in the Third Amended Complaint (the “Subject Property”).
2. The United States has recorded Notices of Federal Tax Lien with the Clerk
and Recorder’s Office of Gunnison County, Colorado pursuant to 26 U.S.C. § 6323(a) to make
its liens against any and all real property owned by David Goldston and held by High
Mountain Holding Trust and Old Times Holding Trust as his nominees, including the subject
property, effective against persons entitled to such notice.
3. First Pinkston and Gunnison County were named as defendants in the Third
Amended Complaint to fulfill the requirements of 26 U.S.C. § 7403(b), as said defendants
claim an interest in the Subject Property.
4. Gunnison County’s claimed interest in the Subject Property (Lots 2 and 3) derives
from certain real property tax liens encumbering the Subject Property.
5. First Pinkston claims an interest only in Lot 2 of the Davenport Subdivision (“Lot
2”), which derives from the following:
5.1

Beginning in 2009 and continuing through 2012, High Mountain Holding Trust,

the then record owner of Lot 2, did not pay the real property taxes it owed to Gunnison
County for Lot 2.
5.2

In accordance with the statutory procedures set forth in C.R.S. §§39-11-100.3,
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12216929.1

et seq. (the “Tax Lien Act”), Gunnison County sold, and First Pinkston purchased, the
tax lien certificates for the unpaid real property taxes levied on Lot 2 for 2009, 2010,
2011 and 2012.
5.3

First Pinkston, as the holder of those tax lien certificates, exercised its rights

under C.R.S. §39-11-120 of the Tax Lien Act to present said tax lien certificates to
Gunnison County in exchange for the issuance of a treasurer’s deed to Lot 2.
5.4

Gunnison County issued First Pinkston a treasurer’s deed to Lot 2, which was

recorded on June 9, 2014, at Reception No. 627079 of the records of Gunnison County.
6.

First Pinkston subsequently paid the 2013 real property taxes due and owing to

Gunnison County for Lot 2.
7.

C.R.S. §39-11-128 of the Tax Lien Act sets forth the conditions precedent to the

issuance of treasurer’s deeds. One of those conditions precedent requires that notice of the tax
lien purchase and issuance of deed be served by the treasurer “upon all persons having an
interest or title of record in or to the [subject property] if, upon diligent inquiry, the residence
of such persons can be determined.” C.R.S. §39-11-128(1)(a).
8.

That notice requirement is jurisdictional, and anything less than full compliance

voids a treasurer’s deed. Siler v. Inv. Sec. Co., 244 P.2d 877, 880 (1952); Meyer v. Haskett,
251 P.3d 1287, 1292 (Colo. App. 2010); Wittemyer v. Cole, 689 P.2d 720, 721–22 (Colo. App.
1984).
9.

The treasurer of Gunnison County failed to exercise the requisite diligence in

sending notice of the impending issuance of the treasurer’s deed to the United States, as the
treasurer (a) failed to determine the correct address of the United States as required by 26
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U.S.C. §7425(c)(1) and as set forth in Treas. Reg. §301.7425-3 and IRS Publication 786, and
(b) failed to send notice of the impending sale to the United States at that correct address.
10.

As a consequence of the failure to exercise such diligence, the issuance of the

treasurer’s deed to First Pinkston was void and of no force and effect. Siler v. Inv. Sec. Co.,
244 P.2d 877, 880 (1952). “A void deed is a nullity, invalid ab initio, or from the beginning,
for any purpose. It does not, and cannot, convey title, even if recorded.” Delsas ex rel. Delsas
v. Centex Home Equity Co., LLC, 186 P.3d 141, 144 (Colo. App. 2008).
11.

Because the issuance of the treasurer’s deed to First Pinkston was void ab initio,

Gunnison County’s tax liens, and the tax lien certificates purchased and held by First Pinkston,
exist as if First Pinkston had never presented said tax lien certificates to Gunnison County in
exchange for the issuance of the treasurer’s deed to Lot 2.
12.

The United States, First Pinkston and Gunnison County agree that the tax lien

certificates pertaining to Lot 2 and purchased and held by First Pinkston, including the tax lien
certificate that would represent the payment by First Pinkston of the 2013 taxes, have priority
over the federal tax liens at issue in this matter.
13.

This stipulation defines only the relative priority between the United States,

First Pinkston and Gunnison County pursuant to the provisions of the Federal Tax Lien Act,
and does not include an agreement as to the amount owed by the taxpayer David Goldston to
the United States.
14.

First Pinkston agrees to allow the sale of the property (Lot 2) by judicial auction

or by private sale (per the terms of the United States’ stipulation with defendants David and
Nancy Goldston).
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15.

The United States shall include in its proposed order of sale regarding its

foreclosure claim against the subject property a provision that Gunnison County’s liens and the
tax lien certificates purchased and held by First Pinkston, including the tax lien certificate that
would represent the payment by First Pinkston of the 2013 taxes, shall be satisfied from the net
proceeds of sale (after the costs of sale are paid) prior to any distribution to the United States or
any other party to cover Gunnison County’s and First Pinkston’s liens or other ownership
interests in amounts according to proof at the time of sale. If the affected parties cannot
stipulate to the amounts of said liens, the Court may hold an evidentiary hearing to determine
the amounts.
16.

To the extent a quit claim deed must be executed to effect the transfer of Lot 2

in a private sale or to otherwise enable the purchaser at such private or foreclosure sale to
obtain insurable title to Lot 2, First Pinkston agrees to provide and execute such document(s) at
the request of the United States.
17.

First Pinkston stipulates to entry of judgment foreclosing the federal tax liens on

Lot 2 and distribution of proceeds in accordance with the terms above and the stipulations
between the United States and the Goldstons (Doc. # 36), and the United States and Gunnison
County (Doc. # 59).

///
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DATED this 19th day of December, 2014.
DAVID. A. HUBBERT
Deputy Assistant Attorney General
/s/ Aaron M. Bailey
AARON M. BAILEY
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 683
Ben Franklin Station
Washington, D.C. 20044
[phone]
[phone] (fax)
[e-mail]
/s/ Robert M. O’Hayre (original on file)
ROBERT M. O'HAYRE
O'Hayre, Dawson & Norris, P.C.
120 North Taylor Street
P.O. Box 179
Gunnison, Colorado 81230
Phone: [phone]
Fax: [phone]
Email: [e-mail]
/s/ Art Trezise (original on file)
ART TREZISE
Deputy County Attorney
Gunnison County Attorney’s Office
200 East Virginia Avenue, Suite 262
Gunnison, Colorado 81230
Phone: [phone]
Fax: [phone]
Email: [e-mail]
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APPROVED AND SO ORDERED.

DATED:

___________________

________________________________
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that service of the foregoing STIPULATION has been
made this 19th day of December, 2014, by depositing copies upon the parties hereto in the
United States mail in a postage prepaid envelope addressed to the following:
David Goldston
Nancy Goldston
339 Lakeshore Court
Polk City, FL 33868
James Senneker
Janet L. Senneker
12125 Shaftsburg Rd.
Perry, MI 48872
Art Trezise
Deputy County Attorney
Gunnison County Attorney's Office
200 East Virginia Avenue, Suite 262
Gunnison, CO 81230
Robert M. O'Hayre
O'Hayre, Dawson & Norris, P.C.
120 North Taylor Street
P.O. Box 179
Gunnison, Colorado 81230
Attorney for First Pinkston L.P.
/s/ _Aaron M. Bailey__
AARON M. BAILEY
Trial Attorney, Tax Division

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