Opinion
Case No. CV 07-05767 PSG (AJWx)
12-14-2011
United States of America, Plaintiff, v. Gunter M. Zielke, et al., Defendants.
ANDRE BIROTTÉ JR. United States Attorney SANDRA R. BROWN Assistant United States Attorney Chief, Tax Division GAVIN L . GREENE Assistant United States Attorney Attorneys for United States of America
ANDRÉ BIROTTE JR.
United States Attorney
SANDRA R. BROWN
[Assistant United States Attorney
Chief, Tax Division
GAVIN L GREENE (SBN 230807)
Assistant United States Attorney
Attorneys for the United States of America
[Proposed] Judgment and Order of Sale
Hearing before Judge Gutierrez:
Time: 1:30 p.m.
Address: Roybal Federal Building and United States Courthouse Courtroom 880 255 E. Temple Street Los Angeles, CA 90012
Based on the papers filed in this case, the arguments advanced at the hearing, and all other matters properly made part of the record,
IT IS ORDERED:
Reduce Assessments to Judgment
On January 22, 2009, the Court entered the Corrected Judgment Reducing Tax Assessments to Judgment finding that as of January 26, 2009, Gunter and Prapapun Zielke (the taxpayers) had outstanding income tax liabilities for tax years 1995 and 1996 in the amount of $27;141.27 and $27,782.29 respectively as of January 26, 2009. Document number 106.
This resolved the First Cause of Action in favor of the United States.
Set Aside Fraudulent or Nominee Transfers
The United States of America has a valid federal tax lien, in the amount of the unpaid tax liability, against the property interests of the taxpayers.
Alpha Beta Gamma Trust holds bare legal title to the real property located at 8801 Riderwood Drive, Sunland, California 91040 (the subject property), legally described as:
Lot 80 of Tract No. 22208, in the City of Los Angeles, State of California, as per map recorded in book 703, Pages 92 to 97 of Maps, in the Office of the County Recorder of said county. [APN 2547-003-012].
Alpha Beta Gamma Trust holds title to the property as a nominee for the taxpayers.
In addition, the transfer of property from Gunter Zielke to Alpha Beta Gamma Trust was made with the intent to hinder, delay, or defraud the IRS and thus was a fraudulent transfer pursuant to California Civil Code Section 3439.04(a).
This resolves the Third Cause of Action in favor of the United States.
Foreclosure of Federal Tax Liens
The taxpayers have unpaid income tax liabilities for tax years 1995 and 1996.
A lien for the taxpayers' unpaid tax liabilities attached to the subject property as of the dates of assessment and continues to attach to such property.
The United States is entitled to foreclose on the subject property.
The federal tax lien is hereby foreclosed against the taxpayers' interest in the subject property.
The property shall be sold by the Area Director of the Internal Revenue Service, Los Angeles, California Area (Area Director), or his delegate, in accordance with 28 U.S.C. §§ 2001(a) and 2002 at a public sale to be held at the Los Angeles County Courthouse, 111 North Hill Street, Los Angeles, California, as follows:
1. Notice of the sale shall be published once a week for at least four (4) weeks prior to the sale in at least one newspaper regularly issued and of general circulation in Los Angeles County, California. Said notice shall describe the property by both its street address and its legal description, and shall contain the terms and conditions of sale as set out herein.
2. The terms and conditions of sale shall be as follows:
a. The Internal Revenue Service shall appraise the current fair market value of the subject property (appraised value).
b. The minimum bid shall be 75% of the appraised value.
c. The United States of America may bid a credit against its judgment and interest thereon, costs, and expenses, without tender of cash.
d. The terms of sale as to all other persons or parties bidding shall be cash. The successful bidder shall be required to deposit with the Area Director cash equal to twenty percent (20%) of the bidder's total bid immediately upon the property being struck off and awarded to such bidder as the highest and best bidder; and the remaining eighty percent (80%) of said purchase price is to be paid on or before 5:00 p.m., within three (3) days of the date of sale.
e. Should the successful bidder fail to comply with the terms of the sale, such bidder shall be liable to the United States for twenty percent (20%) of the value of the property as a penalty, and said deposit shall
be paid over and delivered to the United States to be applied toward payment of said penalty. Payment of said penalty shall not be a credit on the judgment of the United States.
3. Upon selling the subject real property, the Area Director, or his delegate, shall give to the purchaser a Certificate of Sale containing the description of the property sold and the price paid.
4. Within ten (10) days from the date of sale, the United States shall file an accounting and report of sale with the Court.
5. If no objections have been filed within fifteen (15) days of the date of sale, the sale shall be confirmed without necessity of motion, and the Area Director shall be directed by the Clerk of the Court to execute and deliver his Deed to said purchaser.
6. Possession of the property sold shall be yielded to the purchaser upon the production of the Certificate of Sale and Deed; and if there is a refusal to so yield, a Writ of Assistance may, without further notice, be issued by the Clerk of this Court to compel delivery of the property sold to the purchaser.
7. The Area Director shall apply the proceeds of sale to expenses of sale and then according to lien priority as follows:
a. First, in satisfaction of any unpaid property taxes owing to the County of Los Angeles as secured against the subject real property on the date of sale;
b. Second, to the United States of America (Internal Revenue Service) and the State of California Franchise Tax Board (Franchise Tax Board), based on the assessment dates as follows:
Assessmentc. Third, to Gunter Zielke.
Creditor_Tax Period_Date
Internal Revenue Service 1995 12/6/1999
Franchise Tax Board 1998 10/1/2000
Internal Revenue Service 1996 2/5/2001
Franchise Tax Board 1996 1/16/2003
The Court will retain jurisdiction of this action for the purpose of ensuring compliance with the terms of this Order of Sale.
This resolves the Second Cause of Action in favor of the United States.
IT IS SO ORDERED.
____________
PHILIPS. GUTIERREZ
United States District Judge
Respectfully presented by:
ANDRE BIROTTÉ JR.
United States Attorney
SANDRA R. BROWN
Assistant United States Attorney
Chief, Tax Division
GAVIN L. GREENE
Assistant United States Attorney
Attorneys for United States of America