United States of America v. Levine

Filing 33

District Judge Timothy S Hillman: MEMORANDUM AND ORDER entered granting 15 Motion for Summary Judgment. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
UNITED STATES OF AMERICA,

v.
STEVEN LEVINE,
Defendant.

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Civil Action No. 11-cv-12284-TSH

MEMORANDUM AND ORDER GRANTING
THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT
March 25, 2013
HILLMAN, J.
I NTRODUCTION
This is a civil action arising out of unpaid liability for federal internal revenue taxes and
statutory accruals under 26 U.S.C. § 6201 et seq. The United States of America (“United States”)
has sued taxpayer Steven Levine (“Mr. Levine”), d/b/a Busy Hands, alleging that he owes unpaid
unemployment and employment taxes as well as civil penalties in the amount of $127,874.22 1
plus accrued interest. On August 15, 2012, the United States filed its Motion for Summary
Judgment (Docket No. 15). On September 15, 2012, Mr. Levine filed his Opposition to the
United States’ Motion for Summary Judgment (Docket No. 19). I took this matter under
advisement after a motion hearing held on January 3, 2013. For the reasons set forth below, the
United States’ Motion for Summary Judgment is GRANTED.
STANDARD OF REVIEW

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This amount was calculated at the moment this motion was filed (Docket No. 15-11).

Summary judgment is a dispositive motion used “to pierce the pleadings and to assess the
proof in order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950
F.2d 816, 822 (1st Cir. 1991). The moving party carries the initial burden of directing the court
to specific pleadings, affidavits or discovery in order to demonstrate “that there is no genuine
dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 152
(1st Cir. 2009). Stated differently, the moving party is required to “put the ball in play, averring
an absence of evidence to support the nonmoving party’s case.” Garside v. Osco Drug, Inc., 895
F.2s 46, 48 (1st Cir. 1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548
(1986)). A dispute is “genuine” when there is “sufficient evidence to permit a reasonable trier of
fact to resolve the issue in the nonmovant’s favor.” Casas Office Machs., Inc. v. Mita Copystar
Am., Inc., 42 F.3d 668, 684 (1st Cir. 1994). Furthermore, a fact is “material” if it “has the
potential to alter the outcome of the suit under the governing law if the controversy over it is
resolved satisfactorily to the nonmovant.” Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996).
“Once the moving party has pointed to the absence of adequate evidence supporting the
nonmoving party’s case, the nonmoving party must come forward with facts that show a genuine
issue for trial.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002); see also Celotex, 477
U.S. at 323 (noting that the moving party “bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine [dispute] of material fact”). The nonmoving party may rely
on either contradicted or uncontradicted evidence, Calero-Cerezo v. U.S. Dep’t of Justice, 355
F.3d 6, 19 (1st Cir. 2004), however, they may not rely on “conclusory allegations, improbable
inferences, and unsupported speculation, nor brash conjecture coupled with earnest hope that

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something concrete will materialize” in order to survive summary judgment. J. Geils Band Emp.
Ben. Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996) (internal
quotations and citations omitted). The court must view the evidence in a “light most hospitable to
the party opposing summary judgment, indulging all reasonable inferences in that party's favor.”
Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001) (quoting Griggs-Ryan v. Smith, 904
F.2d 112, 115 (1st Cir. 1990)). Thus, conflicting evidence in the record “favor[ing] in some
lights the defendant[] and in others the plaintiff” is best left for a jury “to determine which
version of the facts is most compelling.” Sensing, 575 F.3d at 153 (citing Calero-Cerezo, 355
F.3d at 19).
MATERIAL F ACTS
Mr. Levine owned and operated “Busy Hands,” a sole proprietorship located in Gardner,
Massachusetts. Pl.’s Local R. 56.1 Statement of Material Facts (Docket No. 15-1) (hereinafter,
“Pl.’s Facts”) ¶ 1. Specifically, the United States’ contends that Mr. Levine is liable for unpaid
tax liabilities and civil penalties in the following ways:
1) During the tax period ending on December 31, 1997, Mr. Levine failed to
fully pay unemployment tax liabilities (pursuant to Form 940) on behalf of
Busy Hands. Id. ¶ 2. As a result of his failure to pay, the Internal Revenue
Service (“IRS”) assessed Mr. Levine for those unpaid tax liabilities. Id. ¶ 3;
see also Pl.’s Mem. Supp. Summ. J. Ex. 1.
2) During the tax periods ending on September 30, 2011 and December 31,
2011, Mr. Levine failed to fully pay employment tax liabilities (pursuant to
Form 941) on behalf of Busy Hands. Pl.’s Facts ¶ 4. As a result of his failure

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to pay, the IRS assessed Mr. Levine for those unpaid tax liabilities. Id. ¶ 5;
see also Pl.’s Mem. Supp. Summ. J. Exs. 2-3.
3) During the 1998 and 2000 tax years, Mr. Levine filed Forms W-2 and W-32
with the Social Security Administration (“SSA”), however, these wages were
inconsistent with wages Mr. Levine reported to the IRS over the same period.
Pl.’s Facts ¶¶ 6-7; Pl.’s Mem. Supp. Summ. J. Ex. 4. Because Mr. Levine
failed to file correct information on these returns, the IRS levied a civil
penalty for both years under 26 U.S.C. § 6721. Pl.’s Facts ¶ 8. Each fine
amounted to ten percent of the discrepancy between the returns filed with the
SSA and IRS. Id.; Pl.’s Mem. Supp. Summ. J. Exs. 6-7.
DISCUSSION
Viewing the evidence in a light most favorable to Mr. Levine, I find that a grant of
summary judgment is appropriate in this case. Although Mr. Levine filed a Memorandum in
Opposition to the United States’ Motion for Summary Judgment (Docket No. 20), none of the
facts set forth therein actually pertained to the substantive issues at the heart of this dispute. In
fact, the only grounds upon which Mr. Levine opposes the United States’ Motion for Summary
Judgment are procedural in nature, specifically, issues relating to the timing of several of the
United States’ filings (Docket No. 20). These procedural defects, like those set forth in Mr.
Levine’s Motion to Dismiss (Docket No. 17), are at best harmless errors and have been
remediated within a reasonable period of time.
As for the merits of this action, Mr. Levine admitted in his Answer that he did not fully
pay all the liabilities alleged by the United States, but he denied for a lack of knowledge the
specific amounts (Docket No. 5). Because Mr. Levine has failed to set forth any material
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Mr. Levine did not file Form W-3 in 1998. Pl.’s Facts ¶ 6.

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evidence to rebut the amounts alleged, there are no genuine disputes left for disposition at trial.
Accordingly, I am compelled to rule in favor of the United States.
CONCLUSION
For the foregoing reasons, the United States’ Motion for Summary Judgment is
GRANTED and Mr. Levine is hereby ORDERED to remunerate $127,874.22 plus accrued
statutory interest pursuant to 28 U.S.C. §§ 6621-22.

IT IS SO ORDERED.

/s/ Timothy S. Hillman________
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT JUDGE

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