United States of America v. Diaz-Garcia et al
Filing
21
OPINION AND ORDER granted 15 Motion for Summary Judgment. Signed by Judge Carmen C. Cerezo on 3/1/2017. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA
Plaintiff
vs
AGUSTIN DIAZ-GARCIA; MAYBETH
VIVALDI-FERMOSO; AGUSTIN
DIAZ-GARCIA, CSP; BUFETE DIAZ
GARCIA, ABOGADOS Y
NOTARIOS, CSP
Defendants
CIVIL 15-2034CCC
OPINION AND ORDER
Before the Court is the unopposed Motion for Summary Judgment
(d.e. 15) filed by plaintiff United States of America.
I.
FACTUAL BACKGROUND
This is a tax liability suit brought by plaintiff United States of America
against defendants Agustín Díaz-García (“Díaz”); Maybeth Vivaldi-Fermoso
(“Vivaldi”); Agustín Díaz-García, CSP (“ADG”); and Bufete Díaz-García,
Abogados y Notarios, CSP (“BDG”) for collection of unpaid federal taxes,
statutory additions to tax assessed, and a permanent injunction.
It is alleged in the Complaint filed on July 29, 2015 (d.e. 2) that (1) Díaz
and Vivaldi failed to file self-employment tax returns and to pay selfemployment tax liabilities in the amount of $150,139.13; (2) Díaz failed to pay
Federal Trust Fund Recovery penalties assessed against him in the amount of
$36,708.43; (3) BDG as successor in liability of ADG failed to pay employment
taxes in the amount of $154,329.37; (4) BDG as successor in liability of ADG
failed to pay unemployment taxes in the amount of $61,246.45; and (5) BDG
as successor in liability of ADG failed to pay penalties assessed in the amount
CIVIL 15-2034CCC
of $16,045.94.
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Plaintiff seeks monetary payment in the aforementioned
amounts, a declaration that BDG is the successor in liability of ADG, and
requests that the Court permanently enjoin these defendants from continuing
to accrue unpaid federal employment and unemployment taxes.
II.
RULE 56(B) STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary
judgment should be entered where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex
Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). Pursuant to the clear language
of the rule, the moving party bears a two-fold burden: it must show that there
is “no genuine issue as to any material facts;” as well as that it is “entitled to
judgment as a matter of law.”
Veda-Rodriguez v. Puerto Rico,
110 F.3d 174, 179 (1st Cir. 1997). A fact is “material” where it has the potential
to change the outcome of the suit under governing law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “genuine” where a
reasonable jury could return a verdict for the nonmoving party based on the
evidence. Id. Thus, it is well settled that “the mere existence of a scintilla of
evidence” is insufficient to defeat a properly supported motion for summary
judgment. Id. After the moving party meets this burden, the onus shifts to the
non-moving party to show that there still exists “a trial worthy issue as to some
material facts.” Cortes-Irizarry v. Corporacion Insular, 11 F.3d 184, 187
(1st Cir. 1997).
CIVIL 15-2034CCC
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If a defendant fails to file an opposition to the motion for summary
judgment, the district court may consider the motion as unopposed and
disregard any subsequently filed opposition. Velez v. Awning Windows, Inc.,
375 F.3d 35, 41 (1st Cir. 2004). The Court must take as true any uncontested
statements of fact. Id. at 41-42; see Local Rule of Procedure 311.12; see also
Morales, 246 F.3d at 33 (“This case is a lesson in summary judgment
practice . . . . [P]arties ignore [Rule 311.12] at their own peril, and . . . failure
to present a statement of disputed facts, embroidered with specific citations to
the record, justifies deeming the facts presented in the movant's statement of
undisputed facts admitted.”) (internal citations and quotations omitted); see
also Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 14-15 (1st Cir. 2004).
III.
DISCUSSION
A.
Monetary Relief (1)-(5)
The United States has submitted Certificates of Assessment
(IRS Form 4340), which are “entitled to a legal presumption of correctness.”
United States v. Fior D'Italia, Inc., 536 U.S. 238, 242, 122 S. Ct. 2117, 2122,
153 L. Ed. 2d 280 (2002). To rebut this presumption, defendants must present
evidence that the assessment provided by the United States is incorrect.
Mercado-Díaz, 2015 U.S. Dist. LEXIS 44373, at *16 (citing Delaney v. Comm'r
of Internal Revenue, 99 F.3d 20, 23 (1st Cir. 1996)). Defendants have not
opposed the Motion for Summary Judgment, nor otherwise rebutted the
assessments which we find to be valid.
CIVIL 15-2034CCC
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B. BDG is the Successor in Liability of ADG
State law governs the determination of successor liability.
See Rodriguez v. Exec. Airlines, Inc., 180 F. Supp. 3d 129 (D.P.R. 2016). In
Piñeiro v. Int’l Air Serv. Of P.R. Inc., 140 D.P.R. 343, 351-354 (1996), the
Puerto Rico Supreme Court listed the elements as:
(1) whether there is substantial continuity of the same business
activity with the same name involving production of the same
products or rendering of the same services;
(2) use of the same facility for the company’s operations;
(3) use of the same machinery and equipment;
(4) maintenance of the same managerial and supervisory
personnel;
(5) employment of the same or substantially the same workforce;
(6) continued operation of the business during the transition
period; and
(7) the predecessor’s ability to provide a remedy to the prevailing
plaintiff.
Rodriguez, at 135 (citing Piñeiro).
Based on the evidence, including the Statement of Undisputed Facts filed
by movant United States (d.e. 15-2), the relevant admissions of defendant in
the Answer to the Complaint (d.e. 12), and the declaration under penalty of
perjury dated August 19, 2016 of Revenue Officer Carmen R. Cifredo
(d.e. 15-3), and particularly Exhibits L, M, N, O and S received in a blue binder
in chambers on August 23, 2016 subsequent to the filing of docket entry 16,
the Court finds that all of the elements listed above have been met, and
determines that Bufete Díaz-García, Abogados y Notarios, CSP (“BDG”) is the
successor in liability of Agustín Díaz-García, CSP (“ADG”).
CIVIL 15-2034CCC
IV.
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CONCLUSION
Having considered all relevant exhibits submitted (d.e. 16), the Cifredo
Declaration and the Statement of Uncontested Facts in support of the Motion
for Summary Judgment (d.e. 15), the same is hereby GRANTED. Accordingly,
(1) defendants Agustín Díaz-García and Maybeth Vivaldi-Fermoso are hereby
ORDERED to pay plaintiff United States of America $150,139.13 plus interest
and other statutory additions that have accrued since August 3, 2015 on
Counts I and II of the Complaint, (2) defendant Agustín Díaz-García is hereby
ORDERED to pay the United States of America $36,708.43 as of August 3,
2015 for unpaid Trust Fund Recovery Penalties, plus interest and other
statutory additions that will continue to accrue as provided by law on Count II
of the Complaint; (3) BDG as successor in liability of ADG is hereby ORDERED
to pay plaintiff United States of America $154,329.37 as of August 3, 2015 plus
interest and other statutory additions that will continue to accrue on Counts IV
and V of the Complaint; (4) BDG as successor in liability of ADG is hereby
ORDERED to pay plaintiff United States of America $61,246.45 as of August 3,
2015 plus interest and other statutory additions that will continue to accrue on
Counts VI and VII of the Complaint; and (5) BDG as successor in liability of
ADG is hereby ORDERED to pay plaintiff United States of America $16,045.94
as of August 3, 2015 plus interest that will continue to accrue on Count VIII of
the Complaint.
26 U.S.C. § 7402(a) provides that “[t]he district courts of the United
States at the instance of the United States shall have such jurisdiction to make
and issue . . . orders of injunction . . . as may be necessary or appropriate for
the enforcement of the internal revenue laws.” Given Díaz and BDG (as
successor in liability of ADG’s) consistent, decade-long failure to report and file
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their employment and unemployment tax returns in violation of the Internal
Revenue Code and Treasury Regulations, despite repeated warnings
regarding their noncompliance, the Court finds that an injunction is “necessary
and appropriate for the enforcement of internal revenue laws” as provided by
section 7402.
Accordingly, the United States’ request for a permanent
injunction is GRANTED. The Permanent Injunction will be entered by separate
Order.
SO ORDERED.
At San Juan, Puerto Rico, on March 1, 2017.
S/CARMEN CONSUELO CEREZO
United States District Judge
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