U.S. v. Greer

Full title: UNITED STATES OF AMERICA, Plaintiff, v. HERMAN E. GREER; HERMAN E. GREER…

Court: United States District Court, W.D. North Carolina, Asheville Division

Date published: Apr 20, 2005

Civil No. 1:03CV223 (W.D.N.C. Apr. 20, 2005)

Opinion

Civil No. 1:03CV223.

April 20, 2005

MEMORANDUM AND ORDER

LACY THORNBURG, District Judge

THIS MATTER is before the Court on the Defendant Herman Greer's separate motions for the Court to reconsider its previous decision and reopen the record, for a continuance, and for the court to appoint him counsel. For the reasons stated herein, Defendants motions are denied.

I. FACTUAL AND PROCEDURAL HISTORY

The Defendant, Herman Greer (the "Defendant"), failed to file federal income taxes for the years 1986 through 1996. As a result, the government mailed notices of deficiencies to the Defendant for the taxes owed for these years. These notices permitted the Defendant to appeal the deficiency to the Tax Court. The Defendant admitted receiving such notices but did not exercise his right to appeal the merits of the deficiency to the Tax Court. See Letter from Herman Greer to Internal Revenue Service, dated April 16, 1993, Exhibit B, attached to United States' Motion for Summary Judgment, filed October 13, 2004, at 1 ("I appreciate your kind offer to let me petition a tax court . . ., but as I am a nontaxpayer I cannot petition a tax court because its jurisdiction extends only to taxpayers."). Assessments of the Defendant's tax liability were subsequently entered and federal tax liens rose against all property and rights to property belonging to the Defendant. 26 U.S.C. §§ 6321, 6322. As of August 3, 2004, the Defendant owed $320,554.37 with further interest and penalties accruing from that date. United States' Memorandum in Support of Summary Judgment, filed October 13, 2004, at 3. The United States filed suit in this court against the Defendant on September 3, 2003. On October 14, 2004, the United States moved for summary judgment as to the Defendant's tax liability, and sought to foreclose on two parcels of real estate it alleged the Defendant owned or controlled to satisfy the Defendant's tax liabilities. The Court granted the United States' motion for summary judgment and entered a sale of decree as to a one-acre parcel of land owned by the Defendant. See Memorandum and Order, filed March 17, 2005, at 7. As to the second parcel of land, a twenty acre tract, the Court found that there existed a genuine issue of fact for trial as to whether the Defendant owned or controlled the land as to permit its foreclosure. Id., at 7-13. The issue is set for trial on May 2, 2005. Following entry of the Court's Order, the Defendant moved the Court for reconsideration of its Order and to reopen the record, for a continuance of proceedings to permit the Defendant to review documents requested from the Internal Revenue Service pursuant to the Freedom of Information Act, and for counsel to be appointed to represent him in the matter.

II. MOTION TO RECONSIDER

The Defendant moves the Court to reconsider its summary judgment order and decree of sale, and to reopen the record on the merits of tax assessments against him. The Defendant asserts many of the same arguments as to the merits of the amount of the tax liability assessed against him as he did in his opposition to the Plaintiff's motion for summary judgment. The arguments center on the Defendant's contention that he was not employed during the period from 1986 through 1996 and, therefore, did not have any income, and that the government has not produced evidence and documentation as to how the tax liability assessed against the Defendant was determined.

A motion for reconsideration should be filed within 10 days of the entry of judgment, and should specify the grounds on which it is based. Judy v. Fidelity National Collections, 2004 WL 3203307, *1 (N.D.W.Va. 2004). "A motion for reconsideration should not be used to reiterate arguments previously made or as a vehicle to present authorities available at the time of the first decision," but instead should be used to "correct manifest errors of law or fact or to present newly discovered evidence." Id. (citations omitted).

The Court first notes that the Defendant's motion to reconsider is untimely, filed 14 days after summary judgment was entered in favor of the United States. Regardless of the untimeliness of the motion, the Court determines that merits of the Defendant's argument do not justify the relief requested. The Court finds that there is no evidence of a manifest error of law or fact in its prior order, and the new evidence put forth by the Defendant does not meet his burden of proving the assessment against him was erroneous.

When a notice of tax deficiency is mailed to a taxpayer, that taxpayer has ninety days within to file a petition for a redetermination of the merits. See 26 U.S.C. § 6213(a); St. Joseph Lease Capital Corp. v. Commissioner of Internal Revenue, 235 F.3d 886, 888 (4^th Cir. 2000). This period to petition the Tax Court for a redetermination is the taxpayer's initial opportunity to challenge the merits of the deficiency or, more specifically, the government's calculation of how much the taxpayer owes. If the taxpayer fails to petition the Tax Court for a redetermination during the ninety day period, the government may assess the deficiency, and begin collecting the tax immediately following the expiration of the period. 26 U.S.C. 6213(c); St. Joseph Lease Capital Corp., 235 F.3d at 888. Once this assessment is made, it is considered to prove a prima facie case of tax liability in a civil suit to reduce the tax liability to a judgment and collect through such means as foreclosure. See United States v. Pomponio, 635 F.2d 293, 296 (4^th Cir. 1980); United States v. Hopkins, 859 F.Supp. 208, 211 (S.D. W.Va. 1994). A taxpayer subject to such a suit may raise a defense that the amount of the assessment is erroneous, but he has the burden of putting forth evidence of such an error outside of his own self serving statements and conclusions. Pomponio, 635 F.2d at 296; Lehnhardt v. United States, 1993 WL 218906, *3 (M.D.N.C. 1993). Should the taxpayer's defense fail at this stage, he may only challenge the amount of the assessment again after the amount of the tax liability is paid. St. Joseph Lease Capital Corp., 235 F.3d at 888. Once the tax liability is paid, the taxpayer may file suit in District Court for a refund of the amounts paid. Id.; see also Maisano v. Commissioner of Internal Revenue, 894 F.2d 1344, 1990 WL 6902, *2 (9^th Cir. 1990); Gregory v. U.S., 1996 WL 571762, *6 (E.D. Mich 1996).

In the case at bar, the Defendant failed to petition the Tax Court within the applicable time period following receipt of the notice of deficiency. See Letter from Herman Greer to Internal Revenue Service, dated April 16, 1993, Exhibit B, attached to United States' Motion for Summary Judgment, at 1 ("I appreciate your kind offer to let me petition a tax court . . ., but as I am a nontaxpayer I cannot petition a tax court because its jurisdiction extends only to taxpayers."). Therefore, the United States properly entered a formal assessment and filed suit in this Court for judgment on the Defendant's tax liability and to foreclose on real estate owned by the Defendant in order to collect the amounts due. By virtue of presenting the Court with a certified assessment of the amount owed by the Defendant at summary judgment, the United States satisfied its prima facie case of the Defendant's tax liability. Memorandum and Order, filed March 17, 2005, at 4. The Defendant failed to meet his burden of coming forth with evidence apart from general denials and self-serving conclusions to defeat the Plaintiff's motion. Id., at 4-5. Furthermore, the new evidence the Defendant puts forth, documents from the Internal Revenue Service, do not meet this burden of proving that the assessment against him was erroneous. Summary judgment on the Defendant's tax liability was, therefore, proper.

Therefore, the Defendant's Motion to reconsider and reopen the record is denied. The Defendant will not be permitted to challenge the merits of the assessments against him until he has paid the taxes assessed. Once payment has been made, if he chooses, the Defendant may file suit against the United States for a refund of the amounts paid.

III. MOTION TO CONTINUE

The Defendant also moves the Clerk of Court to postpone all actions against him while he reviews information obtained through the Freedom of Information Act regarding how the Government determined his tax liability. The Court will construe this as a motion for a continuance.

A trial court has a "right to control their own dockets to require that cases proceed in an orderly and timely fashion." Thacker v. Slayton, 375 F.Supp. 1332, 1336 (D.C.Va. 1974) ( citing United States v. Inman, 483 F.2d 738, 740 (4th Cir. 1973)). Therefore, a trial court is afforded broad discretion in determining whether to grant a party's motion for a continuance. Morris v. Slappy, 461 U.S. 1, 11 (1983); Hatfield v. Fox, 2002 WL 32366024, *13 (S.D.W.Va. 2002); see also Thacker, 375 F.Supp. at 1336 ("[T]rial courts have the discretion to deny motions for continuances where it is deemed that sufficient grounds have not been shown to support said motions." (citations omitted))

The Court finds that the reasons stated by the Defendant in his motion for a continuance do not justify such an order. As explained above, the issue of the merits of the Defendant's underlying tax liability is not before this Court at this time. The Court has awarded summary judgment to the Plaintiff on the Defendant's tax liability. The only issue currently before the Court is United States' motion to foreclose on the 20 acre tract of land held by the Greer Farm Trust. The United States alleges that the Defendant fraudulently conveyed the land to his mother and therefore should be deemed the owner of the tract of land, or alternatively, that the Greer Farm Trust should be deemed the alter ego of the Defendant. The evidence the Defendant has not yet received regarding how his tax liability was determined, which is the basis of his motion for continuance, is not relevant to the issues before the Court at this time and is not proper grounds for a continuance. Therefore, the Defendant's motion for a continuance is denied.

IV. MOTION TO APPOINT COUNSEL

The Defendant has also moved the Court for counsel to be appointed to represent him on the grounds of his physical condition and his inability to afford counsel on his own.

The general rule is that a civil defendant, unlike a criminal defendant, has no inherent right to be represented by counsel. However, a district court, in its discretion, may appoint counsel, or request an attorney to become counsel, for an indigent in a civil action. Choice v. Blackwell, 2002 WL 32079466, *1 (D.S.C. 2002); U.S. v. $27,000.00, 865 F.Supp. 339, 340 (S.D.W.Va. 1994). The Fourth Circuit has cautioned, though, that such an appointment "should be allowed only in exceptional cases." Cook v. Bounds, 518 F.2d 779, 780 (4^th Cir. 1975). But, where "a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him." Garrett v. Elko, 120 F.3d 261, 1997 WL 457667, *5 (4^th Cir. 1997).

The Court finds that the Defendant's circumstances do not warrant the appointment of counsel by the Court. The only issue before the Court at this time is whether the conveyance of the 20 acre tract from the Defendant to his mother was fraudulent, or, alternatively, whether the Greer Farm Trust, which currently holds the 20 acre tract, should be deemed the alter ego of the Defendant. The Court believes that this case not "exceptional" and that the Defendant, despite his physical limitations, is capable of representing himself. Therefore, the Defendant's motion for appointed counsel is denied.

V. ORDER

IT IS, THEREFORE, ORDERED that the Defendant's motion to reconsider and reopen the record is DENIED. IT IS FURTHER ORDERED that the Defendant's motion to continue is DENIED. IT IS FURTHER ORDERED that the Defendant's motion for appointed counsel is DENIED.

A pretrial conference is scheduled with the parties on April 29, 2005, in the chambers of the Honorable Lacy H. Thornburg, U.S. Courthouse Building, 100 Otis Street, Asheville, NC at 11:00am.