United States of America v. Torres et al

Filing 27

ORDER granting 22 Motion for Partial Summary Judgment and the Clerk ofCourt shall enter judgment for the Plaintiff and against the Defendant Jeremias Torres stating that he is indebted to the United States for the tax years 1998, 2004-2009 and 2011 in the amount of $259,569.34 as of February 28, 2014, plus unassessed interest and any other statutory additions provided by law that continue to accrue. Signed by Judge Elizabeth A. Kovachevich on 4/3/2014. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

vs.

CASE NO. 8:13-CV-2372-T-EAK-MAP

JEREMIAS TORRES, ROSA M. TORRES,
and BANK OF AMERICA, NA.,

Defendants.
/

ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

The cause is before the Court on Plaintiff's motion for partial summary judgment against
Jeremias Torres (Motion) (Doc. 22); response thereto (Doc. 23); and a reply to the response
(Doc. 26). The response to the Motion pointed out that the Plaintiff had failed to attach Exhibit
A (copies of INTST computation transcripts) to the Declaration of Caryn Silverman and asserted
that without the computation transcripts the Motion was not supported by any evidence. The
response made no other objections to the Motion. The Plaintiff’s reply attached a copy of the
Declaration of Caryn Silverman with Exhibit A included in support of their motion for partial
summary judgment and asserted that even without Exhibit A the Motion was supported by
sufficient evidence.

CASE NO. 8:05-CIV-1086-T-17-MAP
STANDARD OF REVIEW
This circuit clearly holds that summary judgment should only be entered when the
moving party has sustained its burden of showing the absence of a genuine issue as to any
material fact when all the evidence is viewed in the light most favorable to the nonmoving party.
Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir. 1983). All doubt as to the existence of a
genuine issue of material fact must be resolved against the moving party. Hayden v. First
National Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir. 1979), (quoting Gross v. Southern
Railroad Co., 414 F.2d 292 (5th Cir. 1969)). Factual disputes preclude summary judgment.
The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317,
91 L.Ed.2d 265, 106 S.Ct. 2548, (1986):
In our view 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 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. Id. at 273.
The Court also said, "Rule 56(e) therefore requires that nonmoving party to go beyond
the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing there is a genuine issue for trial.'" Celotex
Corp., at p. 274. The Court must “draw inferences from the evidence in the light most favorable
to the non-movant and resolve all reasonable doubts in that party’s favor.” Speciality Malls of
Tampa v. The City of Tampa, 916 F.Supp 1222 (Fla. M.D. 1996) (emphasis added). A court is
not required to allow a case to go to trial “when the inferences that are drawn from the evidence,
and upon which the non-movant relies are <implausible.’” Mize v. Jefferson City Board of
Education, 93 F.3d 739, 743 (11th Cir. 1996)

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CASE NO. 8:05-CIV-1086-T-17-MAP
A court, however, may only consider “that evidence which can be reduced to an
admissible form.” Rowell v. BellSouth Corp., 433 F.3d 794, 799 (11th Cir. 2005). The existence
of some factual disputes between the litigants will not defeat an otherwise properly supported
summary judgment motion; “the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)(emphasis in original). The
substantive law applicable to the claimed causes of action will identify which facts are material.
Id. In considering the evidence, the court resolves all reasonable doubts about the facts in favor
of the non-moving party and draws all justifiable inferences in its favor. Hickson Corp. v.
Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). The court does not,
however, weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249-50.
BACKGROUND AND FACTS
This action was filed on September 13, 2013, to obtain a judgment for unpaid federal
income tax liabilities assessed against Jeremias Torres, to foreclose on federal tax liens on
property purportedly held by Rosa M. Torres, and to sell real property. The United States also
named Bank of America, NA, as a defendant to this action pursuant to Section 7403(b) of the
Internal Revenue Code (Title 26, United States Code), as a party that may claim a lien upon or
an interest in the real property in issue. The Court issued a default judgment against Bank of
America on February 4, 2014, extinguishing its rights in the property at foreclosure sale and
allowing the United States to sell the property free and clear of any interest it may claim. (Doc.
20).

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CASE NO. 8:05-CIV-1086-T-17-MAP
The facts as established by the Plaintiff in the motion for partial summary judgment and
the reply to the response, which are unopposed by the Defendant except for the objection
regarding the lack of filing Exhibit A which has been remedied, are as follows:
Jeremias Torres did not pay the federal income taxes shown on his filed returns for
multiple years beginning in 1998. (Compl. ¶ 9; Exhibit 1, Certificates of Assessments and
Payments 1998, 2004-2009, 2011; Decl. of Caryn Silverman ¶ 3.) As a result, a duly
authorized delegate of the Internal Revenue Service made assessments against the Torres
for federal income tax liabilities, penalties, interest and statutory additions, and gave
them notices of the assessments and made demands for payment of the assessments...

Despite notices of the assessments and demands for payment ..., Jeremias Torres has
failed and refused to pay the amounts assessed against him, plus unassessed interest and
any other applicable statutory additions provided by law that continue to accrue. (Compl.
¶ 10-11; Silverman Decl. ¶ 6.) As a consequence, there is due and owing from the Torres,
the sum of $259,569.34 as of February 28, 2014, plus accrued interest and statutory
additions thereon as allowed by law. (Compl. ¶¶ 10-11; Silverman Decl. ¶ 6-7.) (Doc. 22,
pgs. 2-3)
The Court has reviewed the motion for partial summary judgment and the legal
arguments asserted by the Plaintiff, to which there has been no opposition from the Defendant
Jeremias Torres. The Court concurs with the legal arguments. It is established that official
records are legally sufficient to establish that an assessment has been made and to show the
amount of the assessed liability that remains outstanding. E.g., United States v. Chila, 871 F.2d
1015, 1017-18 (11th Cir. 1989). As the motion states: “An assessment of federal income tax by
the Internal Revenue Service is presumed valid. Welch v. Helvering, 290 U.S. 111, 115 (1933);
Bone v. Comm’r, 324 F.3d 1289, 1293 (11th Cir. 2003); United States v. Ryals, 2005 WL
3338720, *6, 96 A.F.T.R.2d 2005-7344 (December 08, 2005, N.D. Fla.). A taxpayer challenging
the assessment bears the burden of overcoming the presumption of correctness and must prove

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CASE NO. 8:05-CIV-1086-T-17-MAP
by a preponderance of the evidence that the Commissioner’s determinations were incorrect.
Bone, 324 F.3d at 1293; see also Olster v. Comm’r, 751 F.2d 1168, 1174 (11th Cir. 1985)
(“[a]bsent a finding that the computational methods used, and therefore the assessment, was
arbitrary and without foundation, the tax deficiency is presumptively correct”); Ryals, 2005 WL
3338720, *6 (“taxpayer has the burden of proving that the assessment was incorrect as well as
the correct amount that the assessment should have been”).” Accordingly it is
ORDERED that the motion for partial summary judgment be granted and the Clerk of
Court shall enter judgment for the Plaintiff and against the Defendant Jeremias Torres stating
that he is indebted to the United States for the tax years 1998, 2004-2009 and 2011 in the amount
of $259,569.34 as of February 28, 2014, plus unassessed interest and any other statutory
additions provided by law that continue to accrue.
DONE and ORDERED in Chambers, in Tampa, Florida, this 3rd day of April, 2014.

Copies to: All
parties and counsel of record

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