Opinion
Civil Action No. SA-04-CA-0421-FB.
February 28, 2006
ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The Court has considered the Report and Recommendation of the United States Magistrate Judge filed in the above styled and numbered cause on June 14, 2005 (docket #134); Defendants' (Barry Cox, Janis Cox and Alexander Cox) Motion to Strike "Report and Recommendation of United States Magistrate Judge" (docket #135); the United States' Response to Defendants' Motion to Strike "Report and Recommendation of United States Magistrate Judge" (docket #139); Defendants' (Barry Cox, Janis Cox and Alexander Cox) Second Motion to Strike "Report and Recommendation of United States Magistrate Judge" (docket #141), and the United States' Response to Defendants' Second Motion to Strike "Report and Recommendation of United States Magistrate Judge" (docket #142).
Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review of them. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). In such cases, the Court need only review the Report and Recommendation and determine whether they are either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989).
On the other hand, any Report or Recommendation to which there are objections requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).
The Court has reviewed the defendants' objections to the Report and Recommendation and has conducted a de novo review of the Magistrate Judge's Report and Recommendation with respect to the properly raised objections. See Report and Recommendation, docket #134 at page 35. The Court finds the objections to the Magistrate Judge's Recommendation are without merit. This Court hereby accepts, approves, and adopts the Magistrate Judge's factual findings and legal conclusions contained in the Report and Recommendation. Therefore, the Report and Recommendation shall be accepted pursuant to 28 U.S.C. § 636(b)(1) such that: (1) the United States' Motion for partial summary judgment (docket #118) should be GRANTED; (2) judgment should be entered in favor of the United States and against defendants Barry Cox and Janis Cox on the United States' tax assessments for tax years 1988, 1989, and 1990 in the amount of $335,518.02 plus interest and statutory additions from December 31, 2004, until paid, less credit for the restitution payment of $8,319.68 paid on April 11, 2002; (3) judgment should be entered in favor of the United States and against Barry Cox, Janis Cox, and Alexander Cox such that the United States' federal tax lien should attach to the property located at 502 Roble Vista, San Antonio, Texas, as property of Barry and Janis Cox, such that the property and/or any proceeds realized from the sale of the property are available to the United States for payment on Barry and Janis Cox's outstanding tax liability, and (3) that Defendants' (Barry Cox, Janis Cox Alexander Cox) Motion to Strike Plaintiff's Irrelevant Evidence and Relevant Evidence on Grounds of Prejudice, Confusion and Waste of Time filed April 20, 2005 (docket #126); Defendants' (Barry Cox, Janis Cox Alexander Cox) Motion to Strike Plaintiff's Irrelevant Evidence and Relevant Evidence on Grounds of Prejudice, Confusion and Waste of Time filed April 25, 2005 (docket #128), and Defendants' (Barry Cox, Janis Cox Alexander Cox) Motion to Dismiss United States' Complaint and Motion for Partial Summary Judgment filed June 10, 2005 (docket #133) should be DENIED.
Accordingly, it is hereby ORDERED that the Recommendation of the United States Magistrate Judge, filed in this case on June 14, 2005 (docket #134), is ACCEPTED such that: (1) the United States' Motion for partial summary judgment (docket #118) is GRANTED; (2) JUDGMENT IS HEREBY ENTERED in favor of the United States and against defendants Barry Cox and Janis Cox on the United States' tax assessments for tax years 1988, 1989, and 1990 in the amount of $335,518.02 plus interest and statutory additions from December 31, 2004, until paid, less credit for the restitution payment of $8,319.68 paid on April 11, 2002; (3) JUDGMENT IS HEREBY ENTERED in favor of the United States and against Barry Cox, Janis Cox, and Alexander Cox such that the United States' federal tax lien shall attach to the property located at 502 Roble Vista, San Antonio, Texas, as property of Barry and Janis Cox, such that the property and/or any proceeds realized from the sale of the property are available to the United States for payment on Barry and Janis Cox's outstanding tax liability, and (3) that Defendants' (Barry Cox, Janis Cox Alexander Cox) Motion to Strike Plaintiff's Irrelevant Evidence and Relevant Evidence on Grounds of Prejudice, Confusion and Waste of Time filed April 20, 2005 (docket #126); Defendants' (Barry Cox, Janis Cox Alexander Cox) Motion to Strike Plaintiff's Irrelevant Evidence and Relevant Evidence on Grounds of Prejudice, Confusion and Waste of Time filed April 25, 2005 (docket #128), and Defendants' (Barry Cox, Janis Cox Alexander Cox) Motion to Dismiss United States' Complaint and Motion for Partial Summary Judgment filed June 10, 2005 (docket #133) are DENIED. IT IS FURTHER ORDERED that because the Court has considered the Motions to Strike "Report and Recommendation of United States Magistrate Judge" (docket numbers 135 and 141) as objections to the Report and Recommendation, those motions are also DENIED.
Also pending before the Court are: (1) Motion for Writ of Mandamus filed by the defendants Barry Cox, Janis Cox, and Alexander Cox seeking an order from this Court directing and compelling the United States "namely David B. Coffin, Assistant United States Attorney acting for the USA and representing the Internal Revenue Service . . . to perform his duty owed to the defendants under provisions of Title 26 U.S.C., Section 7491 `Burden of proof'" filed August 18, 1005 (docket #144), and the United States' Response to Defendants' Motion for Writ of Mandamus filed August 24, 2005 (docket #145); (2) Motion for Default Judgment filed by defendants Barry Cox, Janis Cox, and Alexander Cox on August 31, 2005 (docket #146); Defendants' Sur Reply to Plaintiff's Default Response filed September 6, 2005 (docket #147); United States' Response to Defendants' Motion for Default Judgment filed September 14, 2005 (docket #148), and Defendants' Reply to Plaintiff's Response to Defendants' Motion for Default Judgment filed September 19, 2005 (docket #149); (3) Motion to Dismiss Complaint for Want of Subject Matter Jurisdiction filed by defendants Barry Cox, Janis Cox, and Alexander Cox on December 27, 2005 (docket #153) and the United States' Response to Defendants' Motion to Dismiss Complaint for Want of Subject Matter Jurisdiction filed January 5, 2006 (docket #155); (4) Motion for Default Judgment filed by defendants Barry Cox, Janis Cox and Alexander Cox on January 10, 2006 (docket #156); the United States' Response to Defendants' Motion for Default Judgment filed January 23, 2006 (docket #158), and Defendants' Reply to United States' Response to Defendants' Motion for Default Judgment filed January 31, 2006 (docket #161); (5) Motion to Determine Tax Liability Under 11 U.S.C. § 505(a)(1) filed by defendants Barry and Janis Cox on January 24, 2006 (docket #160); the United States' Response to Defendants' Motion to Determine Tax Liability Under 11 U.S.C. § 505(a)(1) filed February 7, 2006 (docket #162), and Defendants' Motion to Strike United States' Response to Defendants' Motion to Determine Tax Liability Under 11 U.S.C. § 505(a)(1) (docket #163), and (6) Motion for Involuntary Dismissal of Complaint filed by defendants Barry Cox, Janis Cox, and Alexander Cox on February 21, 2006 (docket #164), and United States' Response to Defendants' Motion to Strike United States' Response to Defendants' Motion to Determine Tax liability Under 11 U.S.C. § 505(a)(1) filed February 24, 2006 (docket #165). Upon a review of the motions, responses and replies, the Court finds that the issues of merit were all addressed by United States Magistrate Judge Mathy in her Report and Recommendation. Accordingly, IT IS HEREBY ORDERED that all of the foregoing motions (docket numbers 144, 146, 153, 156, 160, 163 and 164) are DENIED.
From a review of the file, it appears that the case cannot be dismissed at this time because of a priority of liens issue remaining between plaintiff United States and defendant Bank One, N.A. As set forth in an Order filed June 28, 2005 (docket #138), Bank One, N.A. withdrew its petition for hearing requested pursuant to 21 U.S.C. § 853(n)(2) to adjudicate the validity of interest in the residence located and situated at 502 Roble Vista, San Antonio, Texas 78258, on April 11, 2005 (docket #136). Therefore, the request for a hearing (docket #123) is dismissed as moot.
It is so ORDERED.