United States America v. Hamilton et al

Filing 53

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 1/13/2017: For the reasons stated below, plaintiff's motion 46 for summary judgment is granted. See separate judgment. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 1/13/2017. Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
United States of America,
Plaintiff,
vs.
Ronald Hamilton, et al.,
Defendant.

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Case No. 15 C 03724

Judge Philip G. Reinhard

ORDER
For the reasons stated below, plaintiff’s motion [46] for summary judgment is granted.
See separate judgment.
STATEMENT-OPINION
Plaintiff, United States of America, brings this action against defendants, Ronald
Hamilton, Mary Hamilton, and CitiMortgage, Inc. (“CitiMortgage”) to collect unpaid federal
income tax liabilities, including statutory additions and costs and to enforce federal tax liens on
real property owned by the Hamiltons. The court has subject matter jurisdiction under 28 U.S.C.
§ 1340. Plaintiff moves [46] for summary judgment. Plaintiff and CitiMortgage have stipulated
[49] as to the priority of their respective liens in the event plaintiff prevails in this matter and
proceeds to judicial sale of certain real property owned by the Hamiltons.
The Hamiltons have not complied with the requirements of LR56.1(b)(3) which requires
parties opposing summary judgment to file a response to the statement of material facts filed by
the moving party pursuant to LR56.1(a)(3). Therefore, the facts presented in plaintiff’s
LR56.1(a)(3) statement are deemed admitted pursuant to LR56.1(c).1
Delegates of the Secretary of the Treasury made assessments of federal income taxes,
penalties and interest against Ronald Hamilton for tax years 2003, 2004, 2005, 2006, 2008, 2009,

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Plaintiff incorporated its LR56.1(a)(3) statement of facts into the document [47] titled
“Plaintiff United States of America’s Memorandum in Support of Its Motion for Summary
Judgment.” While the preferred practice is to file the LR56.1(a)(3) statement as a separate
document, the statement of facts as presented contained citations to the exhibits filed in support
of summary judgment and was obvious enough that the Hamiltons should have been aware they
were required to respond to the statement by LR56.1(b)(3).
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2010. The total balance due from Ronald Hamilton as of November 10, 2016 for taxes,
penalties, and interest assessed for these tax years is $65,908.06. Each of these assessments was
made pursuant to a statutory notice of deficiency (26 U.S.C. §§ 6211-6213) based upon no valid
return having been filed by Ronald Hamilton, coupled with returns prepared by the IRS under
Internal Revenue Code § 6020(b). Delegates of the Secretary of the Treasury properly gave
notice of the above tax assessments and made demand for payment of the assessed liabilities
upon Ronald Hamilton. Despite such notice and demand, Ronald Hamilton has neglected, failed,
or refused to pay the assessed liabilities in full. After application of all abatements, payments,
and credits, Ronald Hamilton remains indebted to the United States for income taxes, penalties,
and interest for the aforementioned tax years in the total amount of $65,908.06 as of November
10, 2016, plus such additional amounts as may accrue from and after that date as provided by
law. Ronald Hamilton, along with his wife, Mary Hamilton, own certain real property
commonly known as 454 N. Edward St., Cortland, Illinois. CitiMortgage claims an interest in
this real property by virtue of a mortgage dated February 24, 2004 and recorded March 3, 2004.2
The Hamiltons do not dispute any of these facts and, thus, they are deemed admitted. LR56.1©.
The facts set forth above establish Ronald Hamilton’s liability for the amount claimed.
Federal tax liens arise upon assessment and attach to all property of the delinquent taxpayer. 26
U.S.C. §§ 6321 & 6322. Thus, federal tax liens attached to Ronald Hamilton’s interest in the
Cortland real property upon assessment of the taxes set forth above. Plaintiff is entitled to
enforce these tax liens by judicial sale of the real property. 26 U.S.C. § 7403.
The only argument raised by the Hamiltons in their opposition to summary judgment is
that plaintiff’s motion is premature because plaintiff has admitted it will be reallocating
payments that were allocated to Ronald Hamilton’s 2001 and 2002 assessed liabilities after the
expiration of the statute of limitations for collection of amounts due for those years. They argue
that the amount actually due is therefore unknown at this time and may be zero.
Summary judgment is often called “the ‘put up or shut up’ moment in litigation, by
which we mean that the non-moving party is required to marshal and present the court with the
evidence she contends will prove her case. And, by evidence, we mean evidence on which a
reasonable jury could rely.” Goodman v. Nat’l Security Agency, Inc., 621 F.3d 651, 654 (7th Cir.
2010) (citations omitted). The Hamiltons have not presented any such evidence. They have not
submitted evidence of payments made. While they state in their brief that plaintiff “has been
garnishing Ronald Hamilton’s social security and retirement pension for years and in all
likelihood allocated those paid sums primarily to the very tax years that are statutorily barred
from collection,” they do not present any evidence as to the amounts that were garnished or the

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The complaint also sought to collect for unpaid taxes assessed for tax years 2001 and
2002. However, the motion for summary judgment does not seek to collect amounts owed
attributable to these years and plaintiff states in its brief that it is abandoning any claim for these
tax years because the statute of limitations has run as to claims for those tax years.
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period of time over which the garnishments occurred, or the allocation of the amounts recovered
via the garnishments.
While the declaration of Breena Effertz, submitted by plaintiff, states the “IRS
anticipates reallocating payments that were applied to Ronald Hamilton’s 2001 and 2002
assessed liabilities after expiration of the collection statute of limitations date” to the liabilities
set forth above, the Hamiltons have not submitted any evidence or authority that the plaintiff is
compelled to reallocate any of the payments (assuming they were made) to the amounts sought
in this action. When a payment on delinquent taxes is not voluntarily made by the taxpayer, the
IRS may allocate the payment as it sees fit. Muntwyler v. U.S., 703 F.2d 1030, 1032 (7th Cir.
1983). The Hamiltons say in their brief that the payments were made via garnishment of Ronald
Hamilton’s social security and pension benefits. Thus, any such payment would have been
involuntary. Id. The Hamiltons have not offered any “evidence on which a reasonable jury could
rely” to find in their favor. Goodman, 621 F.3d at 654.
For the foregoing reasons, plaintiff’s motion [46] for summary judgment is granted. See
separate judgment.
Date: 01/13/2017

ENTER:

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United States District Court

Electronic Notices. (LC)

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