Opinion
Civil No. 1:09-CV-00797 OWW DLB
08-19-2011
UNITED STATES OF AMERICA, Plaintiff, v. RAY CLINGENPEEL; SHIRLEY A. CLINGENPEEL; TUFFY RUFFY TRUST by DAVID K. JACOBS, TRUSTEE and/or by ANITA MORRISON, TRUSTEE; SUSAN BELL TRUST by DAVID K. JACOBS, TRUSTEE; and/or by ANITA MORRISON, TRUSTEE; ATEL CAPITAL GROUP; STATE OF CALIFORNIA FRANCHISE TAX BOARD; RESIDENTIAL CREDIT SOLUTIONS; CITIBANK (South Dakota) NA; TASHIMA FAMILY TRUST by MIKIYE TASHIMA, TRUSTEE; Defendants.
BENJAMIN B. WAGNER United States Attorney G. PATRICK JENNINGS Trial Attorney, Tax Division U.S. Department of Justice Attorneys for the United States of America
BENJAMIN B. WAGNER
United States Attorney
G. PATRICK JENNINGS
Trial Attorney, Tax Division
U.S. Department of Justice
Attorneys for the United States of America
Consolidated
JUDGMENT IN A CIVIL CASE
The plaintiff United States filed a motion for summary judgment and for default judgment (Doc. No. 27). No defendant filed an opposition. The active parties, plaintiff United States and defendants Ray Clingenpeel and Shirley A. Clingenpeel have filed a request for entry of judgment. Upon good cause shown,
IT IS ORDERED THAT JUDGMENT IS ENTERED AS FOLLOWS:
1. Ray Clingenpeel and Shirley A. Clingenpeel are jointly and severally indebted to the United States in the amount of $265,263.86 for individual income tax for the taxable periods ending December 31, 1996, 1997, 1998, 2000, 2003, 2004, 2005, 2006, 2007, 2008, and 2009, plus interest according to 28 U.S.C. § 1961(c) and 26 U.S.C. §§ 6601, 6621(a)(2), from April 30, 2011, until the judgment is paid.
5585 North Indianola Drive - Susan Bell Trust
2. The first parcel of real property that is the subject of this action is located at 5585 North Indianola Drive, Clovis, California 93619 (herein referred to as the "5585 North Indianola Drive"), in the County of Fresno, State of California, and is more particularly described as follows:
Parcel 1:
Lot 86 in Tract No. 2150, SIERRA VIEW RANCHOS, in the County of Fresno, State of California, according to the map thereof recorded September 11, 1970, in Book 25, Pages 53 to 58, inclusive, of Plats, Fresno County Records.
Parcel 2:
Easements for road purposes and public utilities over those portions of Tract No. 2150, SIERRA VIEW RANCHOS, according to the map thereof recorded Book 25, Pages 53 to 58, inclusive, of Plats, records of said County designated on said map as private road offered for dedication for public utilities and for road purposes.
APN: 308-200-27
3. On or about March 4, 1971, the Clingenpeels purchased 5585 North Indianola Drive. The Clingenpeels have occupied 5585 North Indianola Drive as their residence from 1971 to the present.
4. On or about December 17, 1999, a Trust Grant Deed was recorded with the Fresno County Recorder which purported to transfer title to 5585 North Indianola Drive from Ray Clingenpeel and Shirley A. Clingenpeel to "David Keith: Jacobs and Anita Morrison as the Trustees of the Trust known as Susan Bell." Anita Morrison is the daughter of Ray Clingenpeel and Shirley A. Clingenpeel.
1201 North Blackstone Avenue - Tuffy Ruffy Trust
5. The second parcel of real property that is the subject of this action is located at 1201 North Blackstone Avenue, Fresno, California 93703 (herein referred to as the "1201 North Blackstone Avenue"), in the County of Fresno, State of California, and is more particularly described as follows:
The East 78 feet of Lot 50 to 54 inclusive, of Zapps Park, according to the map recorded in Book 8, Page 97 of Plats, Records of Fresno County.
Excepting from said Lot 50 to the North 29 feet;
Also excepting from said Lot 54 that portion deeded to the State of California by deed recorded March 3, 1952 in Book 3132, Page 69 of Official Records, and described as follows:
Beginning at the Southeast corner of said Lot 54; thence along the South line of said Lot 54 South 89° 43' west 6.47 feet; thence North 30° 03' East 12.95 feet to the East line of said Lot 54, said East line also being the West line of the existing State Highway, road VI-Fre-125-Fre, (Blackstone Avenue); thence along said East line of Lot 54 South 0° 03' West, 11.18 feet to the point of beginning.
APN 451-285-15
6. On or about July 28, 1998, a Grant Deed transferring all right, title, and interest in 1201 North Blackstone Avenue to Ray Clingenpeel and Shirley Ann Clingenpeel, husband and wife as joint tenants, was recorded with the Fresno County Recorder. Ray Clingenpeel operates his tire shop at 1201 North Blackstone Avenue.
7. On December 17, 1999, a Trust Grant Deed was recorded with the Fresno County Recorder which purported to transfer title to 1201 North Blackstone Avenue from Ray Clingenpeel and Shirley A. Clingenpeel to "David Keith: Jacobs and Anita Morrison as the Trustees of the Trust known as Tuffy Ruffy Trust."
Tax Liens Attach to Properties
8. Defendants Tuffy Ruffy Trust and Susan Bell Trust were created by Ray Clingenpeel and Shirley A. Clingenpeel and the Clingenpeels' property was transferred to the Trusts for no consideration.
9. Defendants Tuffy Ruffy Trust and Susan Bell Trust are sham trusts which may be disregarded for the purposes of collection of the federal tax liabilities in this judgment.
10. Defendants Tuffy Ruffy Trust and Susan Bell Trust are grantor trusts, nominees, and alter egos of defendants Ray Clingenpeel and Shirley A. Clingenpeel.
11. The transfer of 5585 North Indianola Drive described above in paragraph 4 and the transfer of 1201 North Blackstone Avenue described above in paragraph 7 are hereby set aside. Title to 5585 North Indianola Drive and title to 1201 North Blackstone Avenue is hereby returned to "Ray Clingenpeel and Shirley A. Clingenpeel, husband and wife, as joint tenants."
12. The federal tax lien under 26 U.S.C. Section 6321 attaches to all property and rights to property of Ray Clingenpeel and Shirley A. Clingenpeel, including but not limited to 5585 North Indianola Drive and 1201 North Blackstone Avenue.
13. The Tashima Family Trust filed a Disclaimer of Interest (Doc. No. 12) in this case, disclaiming any further interest in the subject property, on June 18, 2009.
14. On June 10, 2009, the defendant California Franchise Tax Board disclaimed an interest in the subject property. (Doc. No. 11.)
15. The trustees of the Tuffy Ruffy Trust and the Susan Bell Trust were personally served with a summons and complaint (Doc. No. 9, 21) but have not filed an answer or otherwise defended this case.
16. Judgment by default is entered against Tuffy Ruffy Trust and Susan Bell Trust, adjudicating that the trusts have no interest in 5585 North Indianola Drive and 1201 North Blackstone Avenue.
17. The agent for service of process on Citibank South Dakota was served with a summons and complaint (Doc. No. 26.) but Citibank South Dakota has not filed an answer or otherwise defended this case.
18. Judgment by default is entered against Citibank South Dakota, adjudicating that the Citibank South Dakota has no interest in 5585 North Indianola Drive and 1201 North Blackstone Avenue which is superior to that of the United States.
19. The United States and defendants Atel Capital Group and Residential Credit Solutions have filed a joint stipulation of priority regarding their interests in the property. The Court entered an order upon the stipulation. (Doc. No. 25.)
20. The federal tax liens under 26 U.S.C. § 6321 attach to all property and rights to property of Ray Clingenpeel and Shirley A. Clingenpeel, including but not limited to 5585 North Indianola Drive and 1201 North Blackstone Avenue.
21. The United States is entitled to foreclose its liens and enforce this judgment against 5585 North Indianola Drive and 1201 North Blackstone Avenue and that property will be sold, if necessary, pursuant to further order of this Court.
22. Each party shall be liable for its own costs of litigation and attorneys' fees. IT IS SO ORDERED.
Oliver W. Wanger
UNITED STATES DISTRICT JUDGE