Opinion
Civil Action No. 01-0524-P-S
April 9, 2002
ORDER
Currently pending before this court is a Renewed Motion For Default Judgment filed by plaintiff, United States of America, against defendant Nicholas C. Panayiotou for federal income tax liability (doc. 10). A default was entered in this action brought under 26 U.S.C. § 7401 (of the Internal Revenue Code) pursuant to 28 U.S.C. § 1340, 1345, against defendant on September 21, 2001 (doc. 5).
In furtherance of the Motion, plaintiff proffers documentation, the affidavit of Revenue Officer Janet B. Oates (Exhibit A). Plaintiff also refers this court back to its initial Motion For Default Judgment (doc. 6), and the exhibits attached thereto (see doc. 10, p. 4, footnote 2). Plaintiff now asserts that defendant is "liable to the United States in the total amount due, $1,521,836.25, including interest accrued through March 20, 2002, plus further interest thereon from that date at the underpayment rate, compounded daily, pursuant to 26 U.S.C. § 6601(a) and (e), 6621, 6622." (doc. 10, p. 7). Plaintiff informs this court "[b]ecause the interest rate is dependent upon the ever-changing `federal short-term rate,' plaintiff is unable to set forth a specific interest rate." Id., at footnote 1.
However, this court notes that pursuant to § 6621(b), the Secretary determines the federal short-term interest rate in the "first month of each calendar quarter," thus, it appears that there is an established interest rate for the quarter beginning on April 1, 2002. Also, this court, in its Order dated February 26, 2002, alluded to the fact that the documentation which plaintiff has presented to this court (see doc. 8, and referred to at doc. 10) does not support the total amount of the judgment sought in this default proceeding. (This court is aware that a portion of the amount represents accruing interest, i.e., through March 20, 2002). The inconsistency between the Certificate of Official Record (doc. 8, Ex. 2), and the total amount of the judgment sought has not been clarified by the Renewed Motion. The documentation proffered does not mathematically support the $1,521,836.25 figure sought.
Again, this court stresses that it is mandatory that a judgment be a self-contained document setting out, if applicable, a calculable sum, if not a sum certain to avoid any confusion. See Fed.R.Civ.P. 54(a), 55(b)(2), and 58. A judgment for damages is subject to immediate execution. Black's Law Dictionary, 848 (7th ed. 1999). This court finds that plaintiffs' Renewed Motion For Default Judgment is not "subject to immediate execution."
Accordingly, plaintiffs' Renewed Motion For Default Judgment is hereby DENIED without prejudice to be re-filed seeking a calculable sum set forth with particularity. In furtherance thereof, a hearing in this matter is hereby SCHEDULED to be conducted, in this court's Chambers on Thursday, June 20, 2002, at 10:30 a.m. Plaintiff is to present a Default Judgment setting forth a calculable sum certain which is subject to immediate execution for this court's consideration with the appropriate documentation in support thereof.