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Moraldi v. U.S.

United States District Court, D. Nevada
May 10, 2002
No. CV-S-01-1296 RLH (RJJ) (D. Nev. May. 10, 2002)

Opinion

No. CV-S-01-1296 RLH (RJJ)

May 10, 2002


ORDER (Motion to Dismiss or i/t/a Motion for Summary Judgment #8)


Before this Court is Defendant's Motion to Dismiss or in the Alternative For Summary Judgment (#8) filed on February 27, 2002. The Court has also considered Defendant's Memorandum (#9) filed on February 27, 2002, Declaration in Support of Defendant's Motion (#10) filed on February 27, 2002, Plaintiffs Opposition (#11) filed on March 13, 2002, and Defendant's Reply (#13) filed on March 22, 2002.

Defendant United States of America argues that Plaintiffs request for redetermination by this Court should be dismissed because Plaintiff failed to comply with the requirements for filing a protest with the Internal Revenue Service.

BACKGROUND

On November 2, 2001, Plaintiff Gina Moraldi ("Moraldi") filed a complaint with this Court pursuant to 28 U.S.C. § 6330. Moraldi contends that she was not responsible for the taxes of Action Electrical Network, and seeks a redetermination of her tax liability.

On October 10, 2000, the Internal Revenue Service ("IRS") sent Letter 1153, by certified mail, to Moraldi. That letter informed Moraldi of the IRS' intent to assess a Trust Fund Recovery Penalty pursuant to 26 U.S.C. § 6672 in connection with the liability of Action Electric Network, Inc. The letter also informed her of her right to appeal or protest the determination within 60 days of the date of the letter. Additionally, the letter informed Moraldi that she may have someone else represent her before the IRS if she filed a power of attorney or a tax information authorization. On December 8, 2000, attorney Thomas Crowe ("Crowe") sent a protest — on behalf of Moraldi — to the IRS in response to their October 10, 2000 letter. The IRS alleges that this protest did not contain a power of attorney or a tax authorization. By allegedly failing to include either of these forms, the IRS believed that Moraldi failed to properly authorize Crowe to represent her. Thus, the IRS assessed a trust fund recovery penalty against Moraldi.

On April 20, 2001, the IRS sent Moraldi a Notice of Intent to Levy. On April 23, 2001, the IRS sent a Notice of Federal Tax Lien to Moraldi. On May 14, 2001, Moraldi timely filed a request for a Collection Due Process Hearing with respect to both the Notice of Intent to Levy and Notice of Federal Tax Lien. Along with the request for the hearing, Moraldi also sent a power of attorney form listing Crowe as her representative. The form was dated May 4, 2001.

Pursuant to Moraldi's request, a collection due process hearing was held regarding the IRS' proposed collection against her. Moraldi was represented at the hearing by Crowe. At the hearing, Crowe argued that the assessment against Moraldi was inappropriate because she was in the process of appealing the issue. The appeals officer assigned to the hearing explained that the issue of assessments were not being addressed, because Moraldi did not timely request an appeals hearing to dispute that matter. Crowe apparently stated that he did not wish to pursue the issue further at that time and requested that a Notice of Determination be issued. Crowe, on behalf of Moraldi, subsequently filed with this Court for a redetermination of the taxes owed.

DISCUSSION

I. Motion to Dismiss Standard

In considering Defendants Motion to Dismiss, the factual allegations of Plaintiffs' Complaint must be presumed to be true, and this Court must draw all reasonable inferences in favor of Plaintiffs. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The issue is not whether Plaintiffs will ultimately prevail, but whether they are entitled to offer evidence in support of their claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not, however, necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in Plaintiffs' Complaint. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981), cert. denied, 454 U.S. 1031 (1981).

II. Summary Judgment Standard

A motion for summary judgment is a procedure which terminates, without a trial, actions in which "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A summary judgment motion may be made in reliance on the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Id.

The United States Supreme Court delineated Rule 56 in a trilogy of opinions rendered in 1986. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574 (1986). According to the Court, the movant is entitled to summary judgment if the non-moving party, who bears the burden of persuasion, fails to designate "`specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). In order to preclude a grant of summary judgment, the non-moving party must do more than show that there is some "metaphysical doubt" as to the material facts. See Matsushita Elec. Indus. Co., 475 U.S. at 586. Rather, the non-moving party must set forth "`specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e)). The substantive law defines which facts are material. See Liberty Lobby, 477 U.S. at 148.

The court views all underlying facts in the light most favorable to the non-movant party. See Martinez v. City of Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998) (citing Matsushita Elec. Indus. Co., 475 U.S. 574, 587 (1986)).

Although the non-moving party has the burden of persuasion, the party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 847 (9th Cir. 1996). That burden is met by showing an absence of evidence to support the non-moving party's case. See Celotex Corp., 477 U.S. at 325. The burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. See Liberty Lobby, 477 U.S. at 250. In meeting this burden, parties seeking to defeat summary judgment cannot rest upon allegations of denials of pleadings, but must demonstrate a genuine issue for trial. See Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Under Rule 56(e), the adverse party must allege specific facts supported by affidavit that raise triable issues. See id. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. See Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996).

III. Underlying Case

In the instant case, there appears to be quite a genuine issue of material fact looming. The Government contends that Moraldi filed her power of attorney form only once and it was dated May 4, 2001. However, Moraldi has provided as an exhibit to her opposition, a power of attorney form signed and dated by her and Crowe on November 6 and 10, 2000. Additionally, the form has been stamped "Received OSC #9 POA Unit" which appears to indicate that the IRS did in fact receive this power fo attorney form. Considering that this is the major crux of the case, a genuine issue of material fact does indeed exist and shall be left to a jury to determine.

CONCLUSION

Accordingly, and for good cause appearing,

IT IS HEREBY ORDERED that Defendant's Motion to Dismiss or in the Alternative For Summary Judgment (#8) is DENIED.


Summaries of

Moraldi v. U.S.

United States District Court, D. Nevada
May 10, 2002
No. CV-S-01-1296 RLH (RJJ) (D. Nev. May. 10, 2002)
Case details for

Moraldi v. U.S.

Case Details

Full title:GINA MORALDI, Plaintiff, v. UNITED STATES OF AMERICA, Defendant

Court:United States District Court, D. Nevada

Date published: May 10, 2002

Citations

No. CV-S-01-1296 RLH (RJJ) (D. Nev. May. 10, 2002)