UNITED STATES OF AMERICA v. BALICE et al

Filing 208

MEMORANDUM OPINION AND ORDER denying Defendant's 183 Motion to Dismiss/Summary Judgment; Denying 192 Motion to Rescind Prior Decision, etc. Signed by Judge Kevin McNulty on 07/05/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 14-3937 (KM)(JBC)

UNITED STATES OF AMERICA,
Plaintiff,

MEMORANDUM OPINION &
ORDER

v.
MICHAEL BALICE,
Defendant.

The United States has filed this action to reduce to judgment defendant
Michael Balice’s tax liability for several years, and to foreclose on a property at
70 Maple Avenue in Metuchen, New Jersey. Now pending before the Court are
two motions:
a. ECF No. 183 (Defendant’s Motion to Dismiss/Summary Judgment)
b. ECF No. 192 (Defendant’s Motion to Rescind Prior Decision)’
Because I write for the parties, familiarity with prior decisions in this matter is
assumed.
A.

Motion to Dismiss/Summary Judgment (ECF no. 183)
This is Mr. Balice’s most recent motion to dismiss—his eleventh,

depending on the method of counting. He seeks dismissal, or in the alternative
summary judgment, on the claims relating to tax year 1998. The motion
asserts primarily that the Court, in its prior decisions denying his motions,

Tins motion (ECF no. 192) was orina1ly referred to the Magistrate Judge for
decision. (See Procedural Order, ECF no. 201.) On further review, I have determined
that it addresses a prior district judge decision, and is therefore more properly decided
by me.
Two other motions—the government’s motion for summary judgment (ECF no.
187) and Mr. Balice’s related Motion to Strike and Objection (ECF no. 191) will be
discussed in a separate opinion.
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made a fatal error in calculation of the statute of limitations. The essence of the
alleged error is that the Court “erroneously declare[dj that February 22, 2010,
is within six years of December 20, 1999,” whereas actually “[tjhere are 10
years and 2 months separating the two dates.” (ECF no. 183

¶

5, 6) If true,

that contention would establish an error of arithmetic, as well as law; but it is
not true. That was not the basis of my earlier decision(s) disposing of the
identical issue. (See ECF no. 152; ECF no. 167 at 4—5.) Mr. Balice’s
presentation mixes up several concepts, including tolling, and erroneously
concludes that the court must have been erroneously referring to a nonexistent
2005 tax obligation, not a 1998 one.
For the sake of clarity, I will place my earlier reasoning in the format of a
chronology:
12/20/1999

Mr. Balice’s 1998 tax return filed, and the statute of
limitations begins to run. Because the return understates
his income by more than 25%, the statute is not three but
six years (= 2190 days). See 26 U.S.C. § 6501(e)(1).

6/21/2004

IRS mails notice of deficiency. 1645 days of the statutory
period have run. The statute is tolled until 60 days after final
Tax Court decision. 26 U.S.C. § 6503(a)(1).

12/10/ 2009

Tax Court decision (ECF no. 104-1) becomes final, 90 days
after it is rendered. 26 U.S.C. § 7481.

2/8/20 10

Tolling period ends, and statute begins running again, 60
days after Tax Court decision becomes final.

2/22/20 10

IRS assesses 1998 taxes based on Tax Court decision.
Approximately 1660 days of the 2190-day limitations period
have run; 530 days remain.

In addition, this motion, filed on December 19, 2016, is in substance an
untimely motion for reconsideration of the Court’s July 20, 2016 decision (ECF
no. 152). See D.N.J. Loc. Civ. R. 7(i) (motion for reconsideration to be filed
within 14 days of challenged order). Considered as such, it is also substantively
defective; it simply expresses disagreement with the Court’s reasoning, without
introducing any argument that was not or could not have been asserted earlier.
See generally North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194,
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1218 (3d Cir. 1995); Damiano v. Sony Music Entertainment, Inc., 975 F. Supp.
623, 636 (D.N.J. 1997).
Finally, this motion appears to have been filed in violation of my earlier
order that further motions for dismissal or summary judgment would require
leave of the Magistrate Judge. (ECF nos. 152 at 4—5, ECF no. 167 at 5) In the
alternative, it could be denied on that basis alone.
In short, the motion (ECF no. 183) is denied.
B.

Defendant’s Motion to Rescind Prior Decision (ECF No. 192)

Mr. Bajice moves to rescind or reopen a prior order of the court (ECF no.
152) granting the plaintiffs motion to strike or dismiss his $100 million Cross
Complaint. (ECF no. 81, referred to as the “Cross Complaint” or the
“Counterclaim”)
On October 19, 2015, Mr. Balice filed a “Cross-Complaint for Damages in
the Amount of $100,000,000 for Multiple Violations of Constitutional Rights,
FORGERY, and FRAUD.” (ECF no. 81) It named as defendants the United
States and M. MacGillivray, a revenue officer.
The United States and McGillivray filed a motion to strike or in the
alternative to dismiss the Crossclaim. (ECF no. 92)
On January 5, 2016, Mr. Balice filed a seven-page “Objection to ex-parte
Actions.” (ECF no. 97) This was in substance a response to the motion of the
United States (ECF no. 92). Mr. Balice alleged that he had not been properly
served with that motion, which therefore was a prohibited ex parte
communication.
On January 13, 2016, Mr. Balice filed a more formal 27-page “Objection
to Plaintiffs Motion to Strike or Dismiss Defendant’s Cross-Complaint” (ECF
no. 101). This submission repeated the allegations regarding ex parte
communications. It also repeated certain contentions, already dealt with by
prior opinions, regarding the unconstitutionality of the income tax, the court’s
lack of subject matter jurisdiction, and the like.
On March 2, 2016, Mr. Balice moved for a default judgment on his
Cross-Complaint (ECF no. 109). On March 29, 2016, he filed an “Objection for
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Failure to Serve Pleadings” (ECF no. 120), also directed at obtaining a default
judgment on his Cross-Complaint. On May 23, 2016, Magistrate Judge Clark
filed an opinion and order denying those motions (ECF no. 138).2 No appeal
was taken.
On July 20, 2016, 1 filed a Memorandum and Order (ECF no. 152) which,
inter alia, granted the motion of the United States (ECF no. 92) to strike or
dismiss the Cross-Complaint. My decision noted that much of Mr. Balice’s
Cross-Complaint was based on arguments about the unconstitutionality of the
income tax, rejected in two prior opinions (ECF nos. 71, 75), as to which the
United States Court of Appeals had denied a writ of mandamus, stating that
these “tax protestor” arguments were oft-rejected and “frivolous.” (ECF no. 152
at 1—2) I next noted the government’s motion to strike on grounds that leave of
the Court would have been required; I set aside that aspect, however, and

considered the merits of the Rule 12(b)(6) motion to dismiss for failure to state
a claim. I then found that that no valid legal claim was stated, citing
appropriate authority. (ECF no. 152 at 2—3)
On February 14, 2017, Mr. Balice filed the current motion to set that
decision aside. The government, with good reason, notes that Mr. Balice’s
motion does not establish, by affidavit or otherwise, recognized grounds for
reconsideration or relief from my prior order. See Fed. R. Civ, P. 60(b), Loc. Civ.
R. 7(i). I nevertheless consider the merits briefly.
Mr. Balice’s motion simply repeats his earlier contention that the United
States failed to serve its motion (ECF no. 92) to strike or dismiss the Cross
Complaint. Those contentions are rejected. The motion itself is accompanied by
proof of service at Mr. Balice’s address of record. (Id. at 3) In addition, there
cannot possibly be any prejudice. As noted above, Mr. Balice filed multiple
submissions in opposition to the government’s motion.
Judge Clark noted that the motion of the United States (ECF no. 92) in
response to the Cross-Complaint was accompanied by proof of set-vice at the address
supplied to the Court by Mr. Balice, and also that Mr. Balice had filed an opposition to
that motion. (ECF no. 138 at 3—4)
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Now, Mr. Balice adds that he never, until recently, received notice of the
order of the court (ECF no. 152) granting the government’s motion. That is
unfair and inequitable, he says, and it requires that the order be rescinded. I
reject that contention. That Order, like all of my orders in this case, was duly
filed on the electronic docket. Mr. Balice has given a mailing address of record,
but also an email address, at which he receives electronic notification of filings.
(See Docket, p. 1) He has filed a pro se “Consent & Registration Form to
Receive Documents Electronically.” (ECF no. 131)
Other orders and filings in the case have apparently been received, and
Mr. Balice has amply availed himself of the opportunity to respond to them. At
any rate, failure to receive the order in a timely fashion would—at best—excuse
Mr. Balice’s lateness in moving to overturn it, a procedural flaw that I have
chosen to overlook. The underlying problem is that Mr. Balice’s motion states
no substantial basis to overturn the order. The motion (ECF no. 192) is
therefore denied.

ORDER

IT IS THEREFORE, this

5th

day of July, 2017

ORDERED, as follows:
a. ECF No. 183 (Defendant’s Motion to Dismiss/Summary Judgment) is
DENIED.
b. ECF No. 192 (Defendant’s Motion to Rescind Prior Decision) is
DENIED.

Kevin McNulty
United States District Judge

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