Opinion
Case No.: Civ. S-00-1954-LKK-DAD
June 17, 2002
JOHN K. VINCENT, and NORMA J. SCHROCK, Trial Attorney, Tax Division, U.S. Department of Justice, Washington D.C., United States Attorney.
FINDINGS AND RECOMMENDATIONS REGARDING AMOUNT OF JUDGMENT
Pursuant to Local Rule 72-302(c)(21) this action was referred to the undersigned for all purposes encompassed by that provision.
In its complaint, the United States seeks to reduce to judgment certain federal tax assessments against the defendant, Darline Koff. The United States filed a motion for summary judgment, which was granted in part and denied in part, pursuant to this Court's Findings and Recommendations dated March 1, 2002, adopted in full by order dated March 20, 2002. It was determined that the United States was entitled to judgment was a matter of law, but that there was inadequate evidence to determined the correct amount of judgment to be entered.
On April 17, 2002, the United States timely filed a summary judgment motion on the amount of judgment, as instructed by the Court, and properly noticed the motion for hearing. The hearing on this second summary judgment motion was held by this Court on May 31, 2002. Norma J. Schrock of the U.S. Department of Justice, Tax Division, appeared telephonically on behalf of the plaintiff. Defendant Darline Koff, proceeding, pro se, appeared on her own behalf. After considering all written materials submitted with respect to the motion and arguments presented at the hearing, the Court makes the following findings and recommendations:
As evidence in support of its motion, the United States submitted an original and a supplemental declaration of Supervisory Revenue Officer Gerald Kinkade. The original declaration itemized the assessments against Darline Koff and accrued interest through April 15, 2002, for the tax periods at issue. The amounts are summarized in the following table:
1982 1983 1984 1985 Tax assessed $ 36,166.00 $25,090.00 $8,109.00 $ 3,730.00 Penalties assessed $ 42,014.63 $25,349.31 $7,409.87 $ 2,142.13 Interest assessed $ 50,732.01 $29,412.37 $7,322.27 $ 2,020.53 Fees and Costs assessed $ 152.00 $ 0.00 $0.00 $ 0.00 Payment and Credits $ (50.00) $(40,811.18) $0.00 $ 0.00 Accrued Interest $ 246,455.62 $ 82,796.79 $43,780.08 $ 15,128.02 Total $ 375,470.26 $121,837.29 $56,621.22 $ 23,020.68 Grand Total $586,949.45 The supplemental declaration itemized the collection costs and fees for 1982.Defendant Darline Koff opposed the government's motion. Most of her arguments in her opposition were issues already decided in the government's first motion for summary judgment. Because those issues were already discussed and decided in its prior findings and recommendations, the Court need not be addressed them here.
Defendant Koff's opposition raised one issue on the amount of the assessment, however, that is relevant to the issue presently before this Court. Defendant Koff asserted that the IRS levied a portion of her husband's pension, and she argued that California's community property law requires that she be credited with one-half of the amount levied. In response, the government supplied publicly recorded documents showing that Darline Koff's husband also had outstanding tax liabilities, and argued that amounts levied from his pension could have been credited to his liabilities, even if the money was community property. California law provides that community property is liable for a debt incurred by either spouse:
Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.
Cal. Fain. § 910. The Court agrees with the government that Darline Koff was not entitled to be credited with one-half of any amount that the IRS seized from her husband's pension.
CONCLUSION
For the reasons set forth above, IT IS HEREBY RECOMMENDED that plaintiff's motion for summary judgment on the amount of judgment be granted, and the judgment be entered in favor of the United States, and against Darline Koff, in the amount of $586,949.45, together with interest pursuant to section 6621 of the Internal Revenue Code from the date of April 15, 2002.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed with five(S) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).