Opinion
00-C-0737-C
September 30, 2001
LAQUITA TAYLOR-PHILLIPS and CARL J. TIERNEY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC, COUNSEL FOR PLAINTIFF.
DON KOSITZKE, DEERFIELD, WI; MICHAEL M. RILEY, GRAY END, MILWAUKEE, WI; BANK OF DEERFIELD, DEERFIELD, WI; RODNEY F. KNIGHT, DEPUTY CORPORATION COUNSEL, MADISON, WI; JAMES D. HARNETT, WISCONSIN DEPARTMENT OF REVENUE, MADISON, WI; PETER W. ZEEH, WI DEPARTMENT OF LABOR, MADISON, WI, COUNSEL FOR DEFENDANTS.
OPINION AND ORDER
This is a civil action in which plaintiff United States of America seeks to reduce to judgment outstanding federal tax assessments made against defendant Richard W. Olsen and to foreclose federal tax liens against real property in which he has an interest. Plaintiff seeks default judgment against defendant Bank of Deerfield, determining that the bank has no interest in the real property at issue in this case. Jurisdiction is present. 26 U.S.C. § 7402 and 7403 and 28 U.S.C. § 1340 and 1345.
From the record and unopposed proposed findings of fact, I find that the following are material and undisputed.
UNDISPUTED FACTS
A delegate of the Secretary of the Treasury made proper and timely assessments against defendant Olsen for federal employment, unemployment and income taxes on the dates and for the periods listed in Exhibit A attached to this order.
Despite proper notice and demand for payment of the assessments, defendant Olsen remains indebted to plaintiff for the periods and amounts, plus interest, listed in the attachment to this order marked Exhibit B. The unpaid assessed balance of the federal taxes and statutory additions owed by defendant Olsen totals $85,728.42. Additional interest and additions accrue from the various dates of assessment.
On the dates of the assessments set out above, federal tax liens arose pursuant to 26 U.S.C. § 6321 and 6322 and attached to all property and rights to property belonging to defendant Olsen, including the property commonly known as 29 West Nelson Street, Deerfield, Wisconsin.
Notice of federal tax liens relating to the liabilities described above were filed with the Dane County, Wisconsin Registrar of Deeds for the tax periods and types of federal taxes on the dates listed in Exhibit C attached to this order.
Defendant Olsen has an interest in the real property located in Dane County, Wisconsin, described as
Outlot E, High School Addition to Deerfield, except the South 55 feet thereof, in the Village of Deerfield, [commonly known as 29 West Nelson Street, Deerfield, Wisconsin].
Copies of the complaint and requests for waiver of service of summons were sent to defendant Bank of Deerfield. Bruce K. Gibson, Assistant Vice President, Bank of Deerfield, signed and returned the waiver of service of summons. The waiver stated that judgment could be entered against the bank unless an answer or motion pursuant to Fed.R.Civ.P. 12 was not served by the bank within 60 days of December 20, 2000. The waiver was filed with the court on January 25, 2001. No answer or Rule 12 motion was received by the United States or filed with the court. The time for this defendant to answer or otherwise respond has not been extended. On March 16, 2001, the clerk of court entered default against defendant Bank of Deerfield.
OPINION
Federal tax assessments are presumptively correct. The United States establishes a prima facie case of tax liability once it adduces evidence that federal tax assessments have been made and there are balances due with respect to those assessments. Plaintiff United States has submitted certificates of assessments and payments that are prima facie evidence of the validity of the federal tax assessments made against defendant Olsen. See, e.g., Long v. United States, 972 F.2d 1174, 1181 (10th Cir. 1992); United States v. Chila, 871 F.2d 1015, 1017-18 (11th Cir. 1989). Defendant Olsen has failed to produce any evidence to refute the evidence plaintiff has submitted. Therefore, plaintiff is entitled to judgment as a matter of law with respect to the assessments it has made against defendant.
Despite notices and demands, defendant Olsen has failed to pay the balances due on his assessments. As a consequence, federal tax liens arose and attached to defendant Olsen's property and rights to property, including his property at 29 West Nelson Street. The liens remain in effect until defendant satisfies his tax liabilities.
Notices of tax liens were filed with the Dane County Registrar of Deeds pursuant to 26 U.S.C. § 6323. Therefore, plaintiff is entitled to foreclose its federal tax liens against defendant Olsen on his real and personal property and any rights to property, including his interest in the property at 29 West Nelson Street, Deerfield, Wisconsin.
Because defendant Bank of Deerfield never filed an answer or motion pursuant to Rule 12 and default has been entered against it, plaintiff is entitled to default judgment against this defendant.
ORDER
IT IS ORDERED that defendant Richard W. Olsen's unpaid federal taxes are reduced to judgment. The clerk of court shall enter judgment of foreclosure and sale of the property located at 29 West Nelson Street, Deerfield, Wisconsin and shall enter default judgment against defendant Bank of Deerfield.
No later than September 23, 2001, plaintiff's counsel is to advise the court how plaintiff intends to proceed against the four remaining defendants.
EXHIBIT A Type Period Ending Assessment Date of Tax 941 September 30, 1994 June 16, 1997 941 December 31, 1994 June 16, 1997 941 March 31, 1995 June 16, 1997 941 June 30, 1995 June 16, 1997 941 September 30, 1995 June 16, 1997 941 December 31, 1995 June 16, 1997 941 March 31, 1996 June 16, 1997 941 June 30, 1996 June 16, 1997 941 September 30, 1996 June 16, 1997 941 December 31, 1996 June 16, 1997 941 March 30, 1997 June 16, 1997 941 June 30, 1997 March 30, 1998 941 September 30, 1997 March 30, 1998 941 December 31, 1997 March 30, 1998 941 March 31, 1998 February 8, 1999 941 June 30, 1998 February 15, 1999 941 September 30, 1998 February 8, 1999 941 December 31, 1998 November 29, 1999 941 March 31, 1999 November 29, 1999 940 December 31, 1993 October 13, 1997 940 December 31, 1997 February 8, 1999 1040 December 31, 1994 January 4, 1999 1040 December 31, 1995 December 28, 1998 1040 December 31, 1996 December 28, 1998 1040 December 31, 1997 December 28, 1998 EXHIBIT B Type Period Ending Unpaid Assessed of Tax Balance 941 September 30, 1994 $1,554.31 941 December 31, 1994 $2,348.55 941 March 31, 1995 $2,281.10 941 June 30, 1995 $2,228.90 941 September 30, 1995 $2,163.29 941 December 31, 1995 $2,080.33 941 March 31, 1996 $2,031.33 941 June 30, 1996 $1,896.77 941 September 30, 1996 $1,882.35 941 December 31, 1996 $1,922.81 941 March 30, 1997 $1,660.54 941 June 30, 1997 $2,088.41 941 September 30, 1997 $1,952.57 941 December 31, 1997 $1,834.59 941 March 31, 1998 $3,433.22 941 June 30, 1998 $3,356.37 941 September 30, 1998 $3,234.63 941 December 31, 1998 $3,288.87 941 March 31, 1999 $2,294.50 940 December 31, 1993 $56.11 940 December 31, 1997 $2,253.77 1040 December 31, 1994 $12,208.63 1040 December 31, 1995 $11,495.14 1040 December 31, 1996 $7,869.47 1040 December 31, 1997 $8,311.86 EXHIBIT C Type of Period Ending Date Notice of Tax Federal Tax Lien Filed 941 September 30, 1994 September 17, 1997 941 December 31, 1994 September 17, 1997 941 March 31, 1995 September 17, 1997 941 June 30, 1995 September 17, 1997 941 September 30, 1995 September 17, 1997 941 December 31, 1995 September 17, 1997 941 March 31, 1996 September 17, 1997 941 June 30, 1996 September 17, 1997 941 September 30, 1996 September 17, 1997 941 December 31, 1996 September 17, 1997 941 March 30, 1997 September 17, 1997 941 June 30, 1997 March 4, 1999 941 September 30, 1997 March 4, 1999 941 December 31, 1997 March 4, 1999 941 March 31, 1998 March 15, 1999 941 June 30, 1998 April 5, 1999 941 September 30, 1998 March 15, 1999 941 December 31, 1998 December 16, 1999 941 March 31, 1999 December 16, 1999 940 December 31, 1993 June 10, 1998 940 December 31, 1997 March 15, 1999 1040 December 31, 1994 June 10, 1999 1040 December 31, 1995 June 10, 1999 1040 December 31, 1996 June 10, 1999 1040 December 31, 1997 June 10, 1999