UNITED STATES OF AMERICA v. BALICE et al
MEMORANDUM OPINION AND ORDER denying Defendant's 219 Motion to Amend/Correct; Denying 223 Motion to Take Judicial Notice ; Denying 224 Motion to Dismiss for Lack of Jurisdiction ; Denying 225 Motion to Strike, etc. Signed by Judge Kevin McNulty on 10/16/2017. (ek)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 14-3937 (KM)(JBC)
UNITED STATES OF AMERICA,
At last count, Mr. Balice had filed some dozen motions to dismiss, as well
as other potentially dispositive motions under various titles. The Court has, in
several prior opinions, considered his “tax protestor” arguments, as well as
others, arid rejected them. (See, e.g.,Opinions, ECF nos. 71, 102, 152, 167,
208, 210, 216)’ I have also required that he seek leave of the Magistrate Judge
before filing further such motions. (See, e.g., Orders, ECF nos. 102, 152)
Nevertheless, now before the Court are several more motions by Mr.
Balice. (ECF nos. 219, 223, 224, 225) Filed without leave, they might be
rejected on that ground alone. In the interest of efficiency, however, I briefly
consider them, without in every case requiring a response from the
2nd Motion to Alter or Amend (ECF no. 219)
On August 9, 2017, the Court entered an Opinion (ECF no. 210) and
Order (ECF no. 211) granting the Motion of the United States for Summary
Judgment as to Counts I, III, V, and VI, without reaching Count IV, and
I apply the labe! “tax protestor” advisedly. In response to one of the cited rulings, Mr. Balice sought a writ
of mandamus from the United States Court of Appeals for the Third Circuit. The Court of Appeals held, biter alla
that Mr. Balice had failed to show that the district court’s lack ofjurisdiction was so clear and indisputable as to
justi& mandamus reliet “To the contrary, as we explained recently in dismissing a previous appeal brought by
have long been rejected as frivolous.” In ,e Bat/ce,
Balice, he presents ‘the type of tax-protester arguments that
March 11,2016) (quoting Bat/ce v. Coi’r,;ñ, CA. No. 15—2366,
CA. No. 16-1242, 644 F. Appx 112, 113 (3d Cir.
634 Fed.Appx. 349, 350, 2016 WL 456634, at *2 (3d Cir. Feb. 5,2016)).
denying Mr. Balice’s Motion to Strike. On August 30, 2017, by another Opinion
and Order, I denied Mr. Balice’s motion for reconsideration. (ECF no. 216)
Mr. Balice has now filed a “2nd Motion to Alter or Amend The Order of the
Court.” (ECF no. 219) Mr. Sauce first characterizes his motion as one under
Fed. 1?. Civ. P. 59(e), but later cites Local Rule 7.1(i). Either way, it is directed
at the Court’s Summary Judgment order. (ECF no. 211) The United States has
submitted a brief in opposition (ECF no. 222). Mr. Balice has filed an
“Objection” (ECF no. 226), which I treat as his reply.
I set aside the lack of any explicit authorization of a second
reconsideration motion. I also note that the motion is surely untimely. (A Rule
7(i) motion must be brought within 14 days, and a Rule 59(e) motion within 28
days.) There is no need to rest on procedural grounds, however, because the
motion lacks substantive merit.
My prior Opinion discussed the standards for reconsideration under
Local Rule 7.1(1). In short, reconsideration is granted sparingly, generally only
in one of three situations: (1) when there has been an intervening change in the
law; (2) when new evidence has become available; or (3) when necessary to
correct a clear error of law or to prevent manifest injustice. See North River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); Cannichaelv.
Everson, 2004 WL 1587894 (D.N.J. May 21, 2004). A Rule 59(e) motion
similarly requires submission of arguments or evidence that were not available
at the time of the original motion:
“Accordingly, a judgment may be altered or amended [only]
if the party seeking reconsideration shows at least one of the
following grounds: (1) an intervening change in the controlling law;
(2) the availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need to
correct a clear error of law or fact or to prevent manifest injustice.”
[citing Howard Hess Dental Labs., Inc. v. Dentsply Int’l Inc., 602
F.3d 237, 251 (3d Cir.2010)] (quotation marks omitted) (emphasis
added). We have made clear that “new evidence,’ for
reconsideration purposes, does not refer to evidence that a party
submits to the court after an adverse ruling. Rather, new evidence
in this context means evidence that a party could not earlier
submit to the court because that evidence was not previously
available.” Id. at 252. Evidence that is not newly discovered, as so
defined, cannot provide the basis for a successful motion for
reconsideration. Harsco Corp. u. Ziotnieki, 779 F.2d 906, 909 (3d
Blystone v. Horn, 664 F.3d 397, 415—16 (3d Cir. 2011)
For the second time, Mr. Balice has submitted a motion that meets none
of those requirements. ft contains nothing that was not, or could not have
been, raised in opposition to the motion for summary judgment (or, I suppose,
in the first motion for reconsideration). It also rehashes discovery disputes
already disposed of. (See, e.g., Opinion, ECF no. 210)
This Motion (“Mot.”) rests on the following allegedly new grounds:
a) Mr. Balice states that “a newly acquired Exhibit.
plainly shows a
‘write off of $76,586.46.” That alleged write-off has already been the subject of
considerable motion practice. And the allegedly “new” transcript he attaches
was provided to him on May 2, 2016. Compare Mot. Ex. 1-A (ECF no. 2 19-1)
Pp. 2-3 with ECF no. 137-1 at pp. 5-6.
b) Mr. Balice appears to argue that an IRS document acknowledges a
statute of limitations date that differs from or that calculated by the Court. See
Mot. at ¶ 19. The evidence in question was available and provided to Balice
over ayear ago. Compare Motion Ex. 1-C (ECFno. 219-3) pp. 3-6 with Dkt.
137-1 p. 5-7. In any event, Mr. Balice points to no error in the Court’s
reasoning with respect to this issue of law.
c) Mr. Balice argues that IRS transcripts incorrectly show that his
income was related to the Virgin Islands or constitutes foreign farm income.
21. This argument is supposedly based on “newly acquired
Exhibit 3” Id, The underlying exhibit, however, is a letter dated May 1997. (ECF
no. 219-11) At any rate, Balice appears to misread the letter, which
distinguishes between the “transaction code TC 150 [whichj indicates a
indicates a tax liability assessed when a tax return is filed,” and “Virgin Islands
(150) [which] relates to the tax liability assessed on a U.S. Self-Employment
Tax Return—Virgin Islands.” (ECF no. 219-11 p. 1) Balice seemingly equates
the two. At any rate, Mr. Sauce fails to explain how any of this would affect his
d) Mr. Sauce raises other, miscellaneous arguments. See, e.g., Mot. at
29, 34, 25. These are primarily based on the IMFOLT transcripts, which were
provided to him on December 29, 2016. (ECF no. 184-1)
None of these grounds are new, and there are none that could not have
been presented previously. There is no basis to reconsider, alter or amend the
court’s prior order.
Second Motion to Take Judicial Notice of Stanton v. BaLtic
Mining (ECF no. 223)
Stanton u. Baltic Mining Co., 240 U.S. 103 (1916), was a challenge to the
constitutionality of the income tax, brought soon after the adoption of the
Sixteenth Amendment. The taxpayer’s arguments were rejected in that case.
Mr. SaUce finds within Stanton an implied principle that individuals are not
subject to the income tax. I cannot find any such principle there.
Assuming that Stanton was not cited in earlier motions—and the title of
the motion implies otherwise—there is no reason it could not have been cited.
There is no basis for reconsideration under the principles stated in the
Motion to Dismiss for Lack of Territorial Jurisdiction
(ECF no. 224)
Mr. Sauce moves to dismiss the case because it falls outside the
“territorial jurisdiction of the United States.” (ECF no. 224) This motion, like
the others, is essentially another, serial motion for reconsideration based on
matters that were, or could have been, raised in prior motions. On that basis
alone, it is properly denied.
At any rate, the analysis is fundamentally flawed. Mr. Balice cites cases
involving federal power over matters occurring acts on lands or properties
purchased and owned by the United States, such as military bases. See, e.g.,
§ 8; 18 U.S.C. § 7. That, however, is not the basis of the
government’s power to collect the income tax. See U.S. Const. art. 1, § 8; Id.
U.S. Const., art. I,
amend, XVI. Mr. Balice also cites cases involving extraterritorial application of
U.S. law, Le., the extension of U.S. law to acts taken in foreign nations. All of
the relevant activities in this case took place on American soil.
The motion is denied.
Objection and Motion to Strike (ECF no. 225)
Mr. Balice objects to the introduction by the United States of additional
evidence and testimony after the entry of summary judgment. (ECF no. 225)
This motion does not specify the matters referred to. It may refer to the citation
of discovery materials already supplied to Mr. Balice in response to his
contention that summary judgment should be vacated because he had not
received such materials. (See Section A, supra.) If so, then the citation was
clearly proper and necessary in response to Mr. Balice’s motion.
This motion and objection is therefore denied.
Accordingly, IT IS this 16th day of October, 2017
ORDERED that the defendant’s motions (ECF nos. 219, 223, 224, 225)
are DENIED. The Court is simultaneously entering an order granting the
application of the United States (ECF no. 217) for an order of sale.
United States District Jud e
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