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United States v. Vacante

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 20, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
FRANK A. VACANTE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 105) AND MOTION PLAINTIFF UNITED STATES OF TO DISMISS (DOC. 124); AMERICA'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 119)

I. INTRODUCTION

Plaintiff United States filed this action to reduce federal tax assessments to judgment and foreclose federal tax liens on real property on June 10, 2008. The tax assessments at issue are against husband and wife Frank and Ute Vacante and their alleged alter egos, Central Valley Insurance Services, Inc. ("CVIS"), and Instant Services, Inc.

Before the Court for decision are several motions. The United States moves for summary judgment against Defendants Frank Vacante and Ute Vacante, proceeding pro se, seeking to reduce to judgment individual tax liabilities for tax years 2000 and 2004. In addition to reducing to judgment the individual tax liabilities assessed against Frank and Ute Vacante, Plaintiff moves to reduce to judgment Frank Vacante's Form 941 Employment Tax Liabilities for the tax periods ending June 30, 1993, September 30, 1993, December 31, 1993, March 31, 1994, June 30, 1994, September 30, 1994, and December 31, 1994; Plaintiff also seeks to reduce to judgment Frank Vacante's Form 940 Federal Unemployment Tax ("FUTA") liabilities for the tax periods ending December 31, 1993 and December 31, 1994.

Pro se Defendants' first motion, filed on November 30, 2009, seeks entry of summary judgment on each cause of action contained in the Second Amended Complaint ("SAC"). Defendants argue that summary judgment is appropriate because they did not have the ability to pay CVIS's taxes, did not have knowledge of the past due amounts, and did not take part in the financial decisions of CVIS.

Defendants' second motion, filed on December 16, 2009, also seeks to dismiss the entire SAC on grounds that: (1) Defendants were denied their due process rights during an unidentified appeals proceeding; (2) Defendants have a binding pre-nuptial agreement;

(3) Revenue Officers Randy Reese and John Certini made material misrepresentations and false statements during their investigations; and (4) IRS manager Martha Rodriguez failed to properly supervise Revenue Officers Reese and Certini.

Oral argument on these motions was held on February 26, 2010, during which Mr. Vacante requested an extension of time to file a supplemental opposition to the United States' motion. Mr. Vacante's request was granted and the Court set a supplemental briefing schedule on the United States' summary judgment motion only.*fn1 Although the parties' arguments in the original and supplemental briefing are largely the same, there is one important distinction: Based on the employment tax figures provided by Mr. Vacante in his supplemental opposition, the United States reduced his Form 941 tax liabilities for the seven tax quarters in 1993 and 1994. The government also recalculated Mr. Vacante's Form 940 tax liabilities for the 1993 and 1994 tax years. However, the tax adjustments were limited to Mr. Vacante's employment tax liabilities, i.e., the figures did not impact or reduce the Vacantes' individual income tax liabilities for tax years 2000 and 2004.

II. FACTUAL BACKGROUND.*fn2

This case arises out of the government's attempt to reduce to judgment certain federal tax assessments made against Frank Vacante, Ute Vacante, CVIS and Instant Services, Inc., and to foreclose federal tax liens arising from federal tax liabilities against five parcels of property owned by the Vacantes.

A. The Vacante's Insurance Businesses

Frank and Ute Vacante ("the Vacantes"), husband and wife have, since 1987, owned and operated a number of insurance businesses beginning in the 1980's. (F. Vacante Dep. at 26:20-30:9, 34:5-35:24.) In 1993 and 1994, Frank Vacante's insurance business operated as a sole proprietorship - VIF Insurance - and employed several individuals, including Ute Vacante, Cynthia Burris and Dan Belew III. (PSUF 15, 29-33; Doc. 145, 11:2-11:3.) In 1995, the Vacante's incorporated the insurance business as Central Valley Insurance Services, Inc. (F. Vacante Dep. at 68:5-68:10.) The California Department of Insurance closed Central Valley Insurance Services, Inc. in 2001, at which time it was absorbed by Instant Services, Inc., an existing real estate company owned by the Vacantes. (Id. at 70:5-70:12, 255:3-257:12.) The Vacantes operated Instant Services, Inc. from 2001 through 2005, issuing a number of insurance policies and engaging in other financially-related transactions.*fn3

Following an investigation into the Vacantes' delinquent taxes, the IRS assessed employment tax liabilities and penalties against Frank Vacante relating to VIF Insurance's outstanding payroll liabilities for seven tax periods from June 30, 1993 through December 31, 1994. The IRS determined that Frank Vacante failed to properly assess and pay his federal employment taxes -Form 940 and 941 - based on his 1992 Form 1040 tax return, Ute Vacante's 1994 W-2 and Form 1040 tax return, the business records of CPA Daniel Burke, and the deposition testimony of Cynthia Burris and Dan Belew III. The IRS's investigation also determined that the Vacantes failed to properly pay their individual income taxes for the 2000 and 2004 tax years.

At oral argument on February 26, 2010, Mr. Vacante disputed these "estimated" amounts, and requested an extension of time to oppose the United States' motion. On March 12, 2010, as part of his supplemental briefing, Mr. Vacante provided figures for wages paid to workers Dan Belew and Cynthia Burris by VIF Insurance in 1993 and 1994. He described the payments as "commissions." According to Mr. Vacante, Mr. Belew and Ms. Burris were paid $26,095 - $16,495 and $9,600 - in 1993. As to the 1994 tax year, Mr. Vacante contends that the two employees were paid commissions of $17,479 (Mr. Belew) and $9,600 (Ms. Burris), for a total of $27,079.

The United States accepts Mr. Vacante's tax figures for 1993 and 1994, however, it contends that Mr. Vacante omits $75,000 in wages paid to Mrs. Vacante in 1994. The United States contends that Mrs. Vacante signed, under penalty of perjury, a bank loan document stating that she "received $75,000 in wages from VIF insurance in 1994." The United States also submitted VIF Insurance's W-2 for 1994, which stated that Ute Vacante received $75,000 in wages from VIF insurance in 1994. According to the United States, the operative wage figures for the 1993 and 1994 tax years are $26,095 and $102,079. The $26,095 and $102,079 paid in wages are the foundation for Mr. Vacante's 1993 and 1994 employment tax liabilities (Form 940 and 941).

B. Form 1040 Tax Liabilities For Tax Years 2000 & 2004

1. 2000 Tax Year

In late 2006, the IRS, pursuant to 26 U.S.C. § 6020(b), assessed income tax liabilities and penalties against Frank Vacante and Ute Vacante for the 2000 tax year. (Doc. 120, Reece Dec. ¶ 4.) The assessments were based on Frank and Ute Vacante's failure to file Form 1040 Individual Tax Returns for the tax year ending December 31, 2000. (Id.)

On April 7, 2008, the IRS received the Vacantes' Joint Form 1040 Individual Tax Return for the tax year ending December 31, 2000. (PSUF 1.) The IRS accepted the Vacantes' untimely return and abated the earlier assessments to the extent they conflicted with the joint return. (Reece Dec. ¶ 4.) The only offset to the Vacantes' 2000 tax liability was a $1.07 overpayment applied by the IRS on March 28, 2007. (Doc. 120, Reece Dec. ¶ 6.)

On November 16, 2009, the IRS determined that Frank and Ute Vacante failed to make estimated income tax payments for the 2000 tax year and issued a "Form 4340, Certificate of Assessments, Payments and Other Specified Matters for Frank A & Ute G. Vacante for U.S. Individual Income Tax Return (Form 1040), for the tax period ending December 31, 2000." (Reece Dec. ¶ 6; Doc. 120-3.) The Certificates of Assessments (known as "Form 4340s") detail the amount in taxes the IRS believes the Vacantes owe for the 2000 tax year, as well as any penalties, costs, and interest assessed to the Vacantes due to their failure to make timely payments. (Id.) As of December 1, 2009, the total outstanding balance of the federal income tax liabilities due from Frank and Ute Vacante for the 2000 tax year, including interest, is $7,102.58.*fn4 (Reece Dec. ¶ 26; Doc. 121-3.)

Defendants dispute the accuracy of the IRS assessments, arguing that their individual income tax issues were summarily resolved pursuant to a $52,064.67 check they sent to the IRS on October 29, 2004. According to the United States, however, the $52,064.67 was used to satisfy the Vacantes' outstanding tax liabilities for the 1993-1999 and 2001 years. It contends that the Vacantes' 2000 and 2004 tax liabilities were not satisfied by the October 29, 2004 payment.

2. 2004 Tax Year

On June 5, 2007, the IRS received the Vacantes' Joint Form 1040 Individual Tax Return for the tax year ending December 31, 2004. (PSUF 9.) After reviewing the joint return, the IRS determined that Frank and Ute Vacante failed to make sufficient income tax payments for the 2004 tax year; the only payments made toward Frank and Ute Vacante's individual income tax liabilities for the 2004 tax year were $1,134.00 in withholdings. (PSUF 10-11.)

On March 11, 2008, the IRS issued a "Form 4340, Certificate of Assessments, Payments and Other Specified Matters for Frank A & Ute G. Vacante for U.S. Individual Income Tax Return (Form 1040), for the tax period ending December 31, 2004." (Doc. 120-5.) The Form 4340s detail the amount in taxes the IRS asserts the Vacantes owe in taxes for the 2004 tax year, as well as any penalties, costs, and interest assessed to the Vacantes due to their failure to make timely payments. (Id.) The assessments were based on Frank and Ute Vacante's failure to timely pay their individual income tax liabilities and for late-filing their Form 1040 tax Return. (PSUF 12-13.) As of December 1, 2009, the total outstanding balance of the federal income tax liabilities due from Frank and Ute Vacante for the 2004 tax year, including interest, is $4,258.17.*fn5 (Reece Dec. ¶ 27; Doc. 121-4.)

Defendants acknowledge a $2,115.00 federal tax liability for the 2004 tax year. Nevertheless, they dispute the accuracy of their liability on grounds that the IRS "levied the Vacante's bank accounts and applied the money to items not owed by the Vacante's." (Doc. 145, 10:21-10-:22.) The allocation and distribution of levy payments is discussed in § V(A)(3), infra.

C. Form 941 Tax Liabilities

Frank Vacante IRS records indicate that Frank Vacante did not file Form 941 Employment Tax Returns for his sole proprietorship for the tax periods ending June 30, 1993, September 30, 1993, December 31, 1993, March 31, 1994, June 30, 1994, September 30, 1994, and December 31, 1994. According to the United States, Frank Vacante employed several individuals during this time, yet failed to make federal tax deposits of withheld income and FICA tax. Mr. Vacante, however, maintains he was not required to withhold or pay Form 941 taxes because his employees paid their own self-employment taxes during the 1993 and 1994 tax years. He claims the employees in question were treated as "independent contractors" and paid "commissions."

Because Frank Vacante did not file Form 941 Employment Tax Returns for his sole proprietorship for the 1993 and 1994 tax years, the IRS calculated the employment taxes based on wages paid by Frank Vacante in 1992 and other third party information. However, the United States recalculated Mr. Vacante's Form 941 employment tax liabilities for tax year 1993 based on the documentation produced by Mr. Vacante on March 12, 2010. According to the United States, the operative wage figures for the 1993 and 1994 tax years are $26,095 and $102,079.

1. 1993

On December 13, 2007, the IRS issued a "Form 4340, Certificate of Assessments, Payments and Other Specified Matters for Frank Vacante, Frank Vacante Insurance for Employer's Quarterly Federal Tax Return (Form 941)," for the tax periods ending June 30, 1993, September 30, 1993, and December 31, 1993. (Docs. 120-8 to 120-10.) Because Frank Vacante failed to file Form 941 Employment Tax Returns or to pay withholding taxes for his sole proprietorship for the 1993 tax year, the IRS calculated the employment taxes based on the wages paid by Frank Vacante in 1992. (PSUF 17.) However, the United States recalculated Mr. Vacante's Form 941 employment tax liabilities for tax year 1993 pursuant to the documentation produced on March 12, 2010 (i.e., wages of $26,095).

As of December 1, 2009, the total outstanding balance of the Form 941 tax liabilities due from Frank Vacante for the June 30, 1993, September 30, 1993, and December 31, 1993 tax periods, including interest, is $24,241.28.*fn6 (Doc. 153-2, ¶¶ 10-13.)

2. 1994

On December 13, 2007, the IRS issued a "Form 4340, Certificate of Assessments, Payments and Other Specified Matters for Frank Vacante, Frank Vacante Insurance for Employer's Quarterly Federal Tax Return (Form 941)," for the tax periods ending March 31, 1994, June 30, 1994, September 30, 1994, and December 31, 1994. (Docs. 120-11 to 120-14.) Initially, because Frank Vacante failed to file Form 941 Employment Tax Returns or to pay withholding taxes for his sole proprietorship for the 1994 tax year, the IRS calculated the Vacante's employment tax liability based on third party information, including the deposition testimony of Cynthia Burris and Dan Belew III. (PSUF 30-31.) The IRS also reconstructed Vacante's Form 941 liability using Ute Vacante's 1994 W-2 filing, which stated she was paid $75,000 by Frank Vacante's sole proprietorship. (PSUF 29.) However, the United States recalculated Mr. Vacante's Form 941 employment tax liabilities for tax year 1994 pursuant to the documentation produced on March 12, 2010 (i.e., wages of $102,079).

As of December 1, 2009, the total outstanding balance of the Form 941 tax liabilities due from Frank Vacante for the March 31, 1994, June 30, 1994, September 30, 1994, and December 31, 1994 tax periods, including interest, is $123,443.49.*fn7 (Doc. 153-2. ¶¶ 14-18.)

D. Form 940 FUTA Tax Liabilities - Frank Vacante

1. 1993 & 1994 Tax Years

IRS records indicate that Frank Vacante did not file a Form 940, Employer's Annual Federal Unemployment Tax Return, for the tax periods ending December 31, 1993 and December 31, 1994. (PSUF 24, 42.) According to the United States, Frank Vacante employed several individuals during 1993 and 1994, yet failed to make federal tax deposits of withheld FUTA taxes. (PSUF 43.) Mr. Vacante maintains that his employees paid their own self-employment taxes during the 1993 and 1994 tax years, therefore he did not owe Form 940 or 941 taxes.

On December 13, 2007, the IRS issued a "Form 4340, Certificate of Assessments, Payments and Other Specified Matters for Frank Vacante, Frank Vacante Insurance, for Employer's Annual Federal Unemployment Tax Return (Form 940)," for the tax periods ending December 31, 1993 and December 31, 1994. (Docs. 121 to 121-2.) Because Frank Vacante failed to file Form 940 FUTA Returns for either 1993 or 1994, the IRS based its FUTA calculations on two sources: (1) payments to workers by Mr. Vacante in 1992, to establish Mr. Vacante's 1993 FUTA liability; and (2) payments of $111,912 paid to workers by Mr. Vacante in the tax year 1994 - $27,987/quarter - to establish Mr. Vacante's 1994 FUTA liability. (PSUF 25, 44.) However, the United States recalculated Mr. Vacante's Form 940 tax liabilities for the 1993 and 1994 tax years pursuant to the documentation produced on March 12, 2010 (i.e., wages of $26,095 and $102,079).

As of December 1, 2009, the total outstanding balance of the Form 940 FUTA tax liability due from Frank Vacante for the December 31, 1993 tax period, including interest, is $832.71. (Doc. 153-2. ¶ 20.) Mr. Vacante owes $3,063.85 in Form 940 FUTA taxes for the tax period ending December 31, 1994. (Doc. 153-2. ¶ 22.)

E. Summary of Tax Liability - Government Figures

1. Frank Vacante

Type of Tax Tax Period Unpaid Balance of Assessments Balance Due w/

Interest

Form 1040 2000 $6,336.38 $7,102.58 Form 1040 2004 $3,528.44 $4,258.17 Form 941 6/30/93 $4,914.47 $7,259.84 Form 941 9/30/93 $5,809.83 $8,549.15 Form 941 12/31/93 $5,730.41 $8,432.29 Form 941 3/31/94 $19,446.22 $28,615.09 Form 941 6/30/94 $21,800.42 $32,079.29 Form 941 9/30/94 $21,450.29 $31,729.16 Form 941 12/31/94 $21,080.49 $31,019.95 Form 940 12/31/93 $565.88 $832.71 Form 940 12/31/94 $2,082.11 $3,063.85

TOTAL DUE:*fn8 151,581.30

2. Ute Vacante

Date Unpaid

Type of Tax Tax Period Assessment

Balance of Balance Due

Assessments w/ Interest Form 1040 2000 11/16/09 $6,336.38 $7,102.58 Form 1040 2004 3/11/08 $3,528.44 $4,258.17

TOTAL DUE:*fn9 $11,360.75

F. Prior Federal Court Judgment Against Frank Vacante

On May 15, 2002, the United States filed an action against Frank Vacante in U.S. District Court for the Eastern District of California, Fresno Division, entitled United States v. Frank Vacante, No. 02-CV-5565-OWW-DLB. The United States initiated litigation to reduce to judgment certain outstanding Form 940 and 941 tax assessments against Defendant Frank Vacante - operating his sole proprietorship as VIF Insurance - for the 1989 and 1990 tax years. (Doc. 1.*fn10 ) Defendant Vacante was properly served with copies of the summons and complaint, but did not respond to the complaint or otherwise appear in the action. Mr. Vacante's default was taken on September 10, 2002. (Doc. 9.)

On November 14, 2002, the United States moved for default judgment against Frank Vacante in the amount of his outstanding tax liabilities. (Doc. 10.) Mr. Vacante did not oppose the motion, nor did he move to set aside the entry of default. The United States' motion for default judgment against Frank Vacante was granted on March 7, 2003. (Doc. 14.) The default judgment was entered in the amount of $21,087.91, plus interest, penalties, and other statutory additions. (Doc. 128-2.*fn11 ) The judgment remains unpaid. (Id.)

III. PROCEDURAL BACKGROUND.

The United States filed a complaint on June 10, 2008 to reduce to judgment outstanding federal tax assessments against Frank Vacante, Ute Vacante, CVIS, and Instant Services, Inc., to foreclose federal tax liens arising from federal tax liabilities against property owned by the Vacantes, to adjudicate that Frank and Ute Vacante are alter egos of CVIS, and to establish successor-in-interest liability regarding the Vacante's various insurance entities.*fn12 (Doc. 1.)

On July 21, 2008, Defendants filed their Answer to Plaintiff's Complaint.

On September 14, 2009, Plaintiff filed the operative SAC, advancing fifteen causes of action: (1) To Reduce to Judgment Federal Tax Assessments Relating to the Vacantes' Unincorporated Business Against Frank Vacante; (2) To Reduce to Judgment Federal Income Tax Assessments and Tax Assessments (Relating to CVIS) Made Pursuant to 26 U.S.C. § 6672 Against Frank Vacante; (3) To Reduce to Judgment Federal Tax Assessments (Relating to CVIS) Made Pursuant to 26 U.S.C. § 6672 Against Ute Vacante; (4) To Reduce to Judgment Federal Tax Assessments Against CVIS; (5) To Reduce to Judgment Federal Tax Assessments Against Instant Services, Inc.; (6) To Determine that CVIS is a Successor in Interest to the Vacantes' Unincorporated Business; (7) To Determine that Instant Services, Inc. is a Successor in Interest to CVIS; (8) To Determine that Ute Vacante is an Alter Ego of CVIS; (9) To Determine that Ute Vacante is an Alter Ego of Instant Services, Inc.; (10) To Determine that Frank Vacante is an Alter Ego of CVIS; (11) To Determine that Frank Vacante is an Alter Ego of Instant Services, Inc.; (12) To Foreclose Federal Tax Liens Against Ute Vacante on the Lander Avenue Property; (13) To Foreclose Federal Tax Liens Against Ute Vacante on the Minaret Avenue Property; (14) To Foreclose Federal Tax Liens Against Frank Vacante on the Lupin Lane Property; (15) To Foreclose Federal Tax Liens Against Frank and Ute Vacante on the Snedigar Road Property; and (16) To Foreclose Federal Tax Liens Against Frank and Ute Vacante on the August Avenue Property. (Doc. 90, ¶¶ 148-201.)

On November 30, 2009, Defendants moved for summary judgment on each cause of action contained in the SAC. (Doc. 105) Defendants argue that summary judgment is appropriate because they did not have the ability to pay CVIS's taxes, did not have knowledge of the past due amounts, and did not take part in the financial decisions of CVIS. Defendants, however, did not file a "Statement of Undisputed Facts," as required by Rule 56-260, Local Rules of Practice.

On December 14, 2009, the United States moved for summary judgment against Defendants Frank Vacante and Ute Vacante, seeking to reduce to judgment certain tax liabilities against Frank Vacante and Ute Vacante. (Doc. 119.) In particular, the United States seeks to: (1) reduce to judgment Frank and Ute Vacante's individual tax liabilities for tax years 2000 and 2004; (2) reduce to judgment Frank Vacante's Form 941 Employment Tax Liabilities for the tax periods ending June 30, 1993, September 30, 1993, December 31, 1993, March 31, 1994, June 30, 1994, September 30, 1994, and December 31, 1994; (3) reduce to judgment Frank Vacante's Form 940 Federal Unemployment Tax liabilities for the tax periods ending December 31, 1993 and December 31, 1994.

On December 16, 2009, Defendants moved to dismiss the entire SAC on grounds that: (1) Frank Vacante never signed a lease for office space in Turlock on May 23, 1994; (2) Defendants were denied their due process rights during an unidentified appeals proceeding; (3) Defendants have a binding pre-nuptial agreement; (4) Revenue Officers Randy Reese and John Certini made material misrepresentations and false statements during their investigations; and (5) IRS manager Martha Rodriguez failed to properly supervise Revenue Officers Reese and Certini. (Doc. 124.)

The United States filed its opposition to Defendants' summary judgment motion on January 25, 2010. (Doc. 128.) In support of its opposition, Plaintiff submitted: (1) a Memorandum opposing the motion ("Memorandum"); (2) a Statement of Facts in Support of its Opposition; (3) the Declaration of G. Patrick Jennings; and (4) Certificates of Assessments for the relevant tax periods at issue in this case. (Docs. 128-129.)

The United States opposes summary judgment on grounds that there remains a genuine issue of material fact concerning whether the Vacantes are "responsible parties" or "acted willfully" under 26 U.S.C. § 6672. (Doc. 128.) The United States also maintains that Defendants' "claim for damages should be denied because they have not counterclaim[ed] for such a remedy, and so their claim is not part of this suit." (Id. at 2:11-2:13.)

On February 4, 2010, Plaintiff United States filed its "Reply and Motion to Strike Vacantes' Memorandum of Points Against Partial Summary Judgment." (Doc. 132.) Attached to the United States' reply was Defendants' "Memorandum of Points Against Partial Summary Judgment." The United States explains:

United Partial in

Frank

United Vacante

States' sent

Motion a memorandum

Summary opposition to the

counsel for for document

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States. with not appear

This has not

appeared on ECF the and does

received the Court. The mailroom at counsel's to have been filed

29, this document building

on the morning of February 1, 2010. this of document

Friday

January 2010, and counsel on the received afternoon

(Doc. 132, 2:1-2:6.)

The United States moves to strike Defendants' "Memorandum of Points Against Partial Summary Judgment," i.e., Defendants' opposition to Plaintiff's summary judgment motion, on grounds that it does not comply with the Rule 78-230(c), Local Rules of Practice. The issue of timeliness under Local Rule 78-230(c) is discussed in § V(A)(1), infra.

Defendants' "Memorandum of Points Against Partial Summary Judgment," includes over 180-pages of exhibits: (1) photocopies of more than 75 cancelled checks from payor "VIF Insurance Services" to payee "West America Bank;" (2) federal tax deposit slips; (3) taxpayer account statements; (4) confidential IRS correspondence re: overpayments and levy notices; (5) photocopies of Form 941 Employment Tax Returns for the tax periods ending June 30, 2001, September 30, 2001, December 31, 2001, March 31, 2002, June 30, 2002, September 30, 2002, December 31, 2002, March 31, 2003, March 31, 2004, June 30, 2005, September 30, 2006; (6) photocopies of Form 940 FUTA taxes for the tax periods ending December 31, 2001 and December 31, 2002; and (7) photocopies of Form 1040 tax liabilities for the 1993, 1994, and 2000 tax periods. (Doc. 136, pgs. 1-99, to 136-2, pgs. 1-81.) Defendants' exhibits were not independently tabbed or otherwise identified.*fn13

On February 12, 2010, the United States filed its "Opposition to Frank Vacante's Motion to Dismiss," arguing that "Vacante's Motion to Dismiss is a series of allegations that two IRS Officers [made material misrepresentations] denying them due process." (Doc. 141, 2:5-2:8.) According to the government, because "Vacante has not raised these claims in a prior proceeding [...] it is improper to raise them now after discovery is closed." (Id. at 2:13-2:15.) The government also asserts that such claims can only be raised pursuant to 26 U.S.C. § 7433, which Mr. Vacante has failed to do.

The parties appeared before the Court on February 26, 2010 for argument on the motions filed by the Vacantes and the United States. During the hearing, Mr. Vacante requested an extension of time to oppose the United States' motion. The Court granted the request and continued the hearing to April 19, 2010.*fn14

Defendants filed four documents on March 12, 2010: (1) an opposition to the United States' motion for summary judgment; (2) a "Points and Memorandum in Support of Summary Judgment Motion;"

(3) a "Points and Memorandum in Support of Motion to Dismiss [for] Failure of Due Process;" and (4) a "Points and Memorandum in Support of Jury Trial Motion."*fn15 In their opposition, Defendants acknowledged that VIF Insurance had payrolls of $42,245 in 1993 and $49,248.64 in 1994.

The United States filed its supplemental briefing on March 22, 2010.*fn16 The substance of the United States' supplemental briefing mirrors its original filings: Defendants' unauthenticated and inadmissible evidence is insufficient to generate a genuine dispute of material fact on the issue of tax liability. The United States also recalculated Mr. Vacante's Form 940 and 941 employment tax liabilities for the 1993 and 1994 tax years pursuant to the documentation produced on March 12, 2010. According to the United States, there is substantial documentary evidence demonstrating the Vacantes' tax liabilities for the relevant tax periods.

IV. LEGAL STANDARDS.

A. Motion For Summary Judgment/Adjudication

Summary judgment/adjudication is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).

Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.

When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

B. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss can be made and granted when the complaint fails "to state a claim upon which relief can be granted." Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim for relief and survive a 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citation and quotation marks omitted).

In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations." Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th Cir. July 10, 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss.").

V. DISCUSSION

A. The United States' Motion

The United States moves for summary judgment against Frank Vacante and Ute Vacante for the assessments of unpaid income taxes and penalties for the 2000 and 2004 tax years. (Doc. 119, 2:21-23.) The United States also moves for summary judgment against Frank Vacante as to: (1) his liabilities for Form 941 Employment Taxes for the periods ending June 30, 1993, September 30, 1993, December 31, 1993, March 31, 1994, June 30, 1994, September 30, 1994, and December 31, 1994; and (2) his liabilities for Form 940 FUTA taxes for the periods ending December 31, 1993 and December 31, 1994. (Id. at 2:23-3:2.)

"In an action to collect federal taxes, the government bears the initial burden of proof." In re Olshan, 356 F.3d 1078, 1084 (9th Cir. 2004) (quoting Palmer v. I.R.S., 116 F.3d 1309, 1312 (9th Cir. 1997)). The government's burden can be met by presenting federal tax assessments. United States v. Stonehill, 702 F.2d 1288, 1293 (9th Cir. 1983). Certificates of Assessments and Payments ("Form 4340s") are highly probative and in the absence of contrary evidence, are sufficient to establish a tax assessment was properly made and notice and demand for payment were sent. See Huff v. United States, 10 F.3d 1440, 1445 (9th Cir. 1993) ("Generally, courts have held that IRS Form 4340 provides at least presumptive evidence that a tax has been validly assessed ...."); Hughes v. United States, 953 F.2d 531, 535 (9th Cir. 1992) ("Official certificates, such as Form 4340, can constitute proof of the fact that the [tax] assessments were actually made.").

When supported by a minimal factual foundation, the IRS' assessments for taxes and related penalties are entitled to a presumption of correctness and the burden shifts to the taxpayer to show the assessment is incorrect. See In re Olshan, 356 F.3d at 1084; Palmer, 116 F.3d at 1312. If the taxpayer fails to rebut the presumption, the government is entitled to judgment as a matter of law. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (finding taxpayers' declaration that they did not receive notice of the tax assessment was insufficient to show a genuine issue of fact for trial where IRS presented Form 4340s.

The United States has submitted Form 4340s calculating the Vacante's tax liabilities and the related penalties for 2000 and 2004, (Docs. 120-3 & 120-5), and Frank Vacante's employer tax liabilities and related penalties for 1993 and 1994, (Docs. 120-8 to 121-2), along with Revenue Officer Randy Reece's Declaration supporting those assessments. (Dec. of R. Reece ¶¶ 4-25; Doc. 153-2, ¶¶ 10-22.) In further support of the assessments, the United States has submitted bank account records, the income tax returns for Ute and Frank Vacante (W-2 and 1040's), associated tax documents, and the deposition testimony of Frank Vacante and Cynthia Burris. (Docs. 120-2, 120-4, 120-6, 120-7, 122-2 to 122-4.) As to the subsequent adjustments, the United States submitted the declaration of IRS Agent Randy Reece and several corresponding account transcripts. (Doc. 133-1 to 133-7.) Because the United States' showing exceeds the minimal factual foundation necessary, the assessments receive a presumption of correctness and the burden of proof shifts to Frank and Ute Vacante to demonstrate any error.

1. Defendants' Opposition*fn17

Defendants advance three arguments questioning the accuracy of the United States' Form 4340s. First, as to their Form 1040 tax liabilities, Defendants assert that "[a] check was issued by Fidelity National Title Co. in favor of the IRS in the amount of $52,064.67 [...] [t]his amount paid 1040 taxes for 1997, 1998, 1999, 2000, and 2001, including all interest and penalties." (Doc. 136, 1:20-1:22.) Second, Defendants argue that their outstanding individual income tax liabilities were satisfied pursuant to a levy on their social security benefits. Third, Defendants contend that "[a]ll 941 and 940 taxes for 6/30/93, 9/30/93, 12/31/93, 3/31/94, 6/30/94, 9/30/94, 12/31/94 were paid. Three people worked at VIF Insurance in 1993 and 1994 [...] all three paid there [sic] taxes on Form 1040, including self-employment tax, Medicare, and federal and state tax." (Doc. 136, 2:1-2:4.) These arguments were the focus of Defendants' original and supplemental briefing.

2. Form 1040 Liabilities

Defendants' first argument is based on their belief that all outstanding 1040 tax liabilities were resolved pursuant to an October 29, 2004 check from Fidelity National Title to the IRS. According to Defendants, the $52,064.67 check satisfied all 1040 liabilities and left a surplus of $6000.00, which was not returned or otherwise explained.*fn18

While the United States does not dispute that it received the $52,064.67 check in 2004, it argues that check was credited to the Vacantes' Form 1040 tax liabilities for 1993-1999 and 2001, not the 2000 or 2004 tax periods. According to the United States, the check satisfied the liabilities for those years "in full," however, "[n]o part of the proceeds received on October 29, 2004, was [sic] posted to the year at issue in this suit." (Doc. 132, 2:18-2:22.)

To support its position, the government submitted the Vacantes' Account Transcripts for Form 1040 income tax liabilities for the relevant tax years. The Account Transcripts indicate that the $52,064.67 check was credited to the outstanding Form 1040 tax liabilities for the 1993, 1994, 1995, 1996, 1997, 1998, 1999, and 2001 tax periods, not against the 2000 and 2004 Form 1040 tax liabilities:*fn19

Tax Year Liability on Amount Posted Fully Record

10/29/04 Satisfied? (Doc., Pg.) 1993 $6,897.38 $6,897.38 Yes 133-2, 2-3 1994 $8,879.65 $8,879.65 Yes 133-2, 4-5 1995 $6,076.52 $6,076.52 Yes 133-2, 6-7 1996 $7,549.93 $7,549.93 Yes 133-2, 8-9 1997 $10,720.41 $10,720.41 Yes 133-2, 10-1 1998 $5,950.55 $5,950.55 Yes 133-2, 12-3 1999 $3,129.30 $3,129.30 Yes 133-2, 14-5 2001 $2,860.93 $2,860.93 Yes 133-2, 16-7

TOTALS: $52,064.67 $52,064.67

Here, despite Defendants' argument that the $52,064.67 payment satisfied their individual income tax liabilities from 1993-1999 and 2001 - $52,064.67 - as well as their individual income tax liabilities from 2000 and 2004 - $11,360.75 -, no documentary evidence was offered to support such a claim. For example, Defendants do not produce a single document memorializing a "below market" global settlement or provide any other explanation for the disparity. Defendants' claims are merely conclusory allegations, which are insufficient to defeat the government's request for summary judgment. See, e.g., Hanson v. United States, 7 F.3d 137, 138 (9th Cir. 1993) ("[nonmoving party] cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact."). Defendants also do not contest that their 1993-1999 and 2001 individual income tax liabilities totaled $52,064.67, which matches identically with their November 29, 2004 payment. Absent evidence that Defendants' $52,064.67 payment satisfied more than $52,064.67 of tax liability or that the tax assessments were incorrect, Defendants have not met their burden for defeating the government's summary judgment motion.

At oral argument on February 26, 2010, Defendants emphasized that they "paid year 2000 taxes including interest and penalties in full on October 29, 2004." In its supplemental briefing, the United States asserted that was impossible for the proceeds to offset the Vacantes' 2000 individual tax liabilities because "no assessments existed for tax year 2000 at the time of payment [October 29, 2004]." The evidence supports the United States' position. In particular, the relevant Form 4340 shows that the first assessment against the Vacantes for tax year 2000 was made on December 25, 2006. (Doc. 120-3.) Here, because the tax liability did not exist in 2004, it was not "satisfied" pursuant to the Vacantes' October 29, 2004 check. Setting aside Defendants' own declarations/submissions, there is no evidence that the October 29, 2004 payment resolved the Vacantes' 2000 individual income tax liabilities.

That is not the end of the analysis, however. During oral argument on April 19, 2010, Defendants claimed that their supplemental briefing erased all uncertainty concerning when they filed their Form 1040 taxes for the 2000 tax year. In particular, the Vacantes referred to several certified mail receipts which were attached to their supplemental opposition. (Doc. 145, pgs. 37-39.) The receipts allegedly relate to their Form 1040 taxes for the 2000 tax year. According to the Vacantes, these receipts demonstrate that they mailed - and paid - their 2000 Form 1040 taxes in May of 2002. This argument is a nonstarter. First, Mr. Vacante fails to identify the receipts or establish their origin - by declaration or otherwise; there is no way to validate his claims concerning the certified receipts. In this regard, the documents are not properly authenticated and are stricken from the summary judgment record. See Conkey v. United States, 545 F. Supp. 2d 1013, 1016-17 (N.D. Cal. 2008) (striking two certified mail envelopes because they were not properly authenticated); see also Harris v. Freedom of Info. Unit Drug Enforcement Admin., No.06-CV-0176-R, 2006 WL 3342598 at *1 (N.D. Tex. Nov. 17, 2006) (striking certified mail receipts on grounds that they "[we]re not properly authenticated.").

Even assuming the unauthenticated receipts are admissible as evidence, the record contradicts the Vacantes' unsupported assertion that these receipts are proof that they mailed their Form 1040 tax returns in May 2002. As the undisputed evidence submitted by the Government demonstrates, the Vacantes neither filed nor paid their 2000 Form 1040 taxes in 2002; rather, they did not submit their tax return until April 7, 2008. (See Doc. 120-2 (Vacantes' Form 1040 for tax year 2000, filed in April 2008); Doc. 120, ¶ 4.) The Vacantes have come forward with no admissible evidence to rebut this record. There is no genuine dispute of material fact.

3. Social Security Levy Payments

Defendants next argue that their outstanding individual income tax liabilities were satisfied pursuant to a levy on their social security benefits. Specifically, Defendants contend that "Mrs. Vacante's Social Security was levied in the amount of $398.00 [monthly] starting in May of 2006 for period of 24 months," and "Mr. Vacante's Social Security was levied in the amount of $127.00 a month for 23 months." (Doc. 136, 1:23-1:25.)

The United States does not dispute that it levied Defendants' social security benefits, however, it asserts that "most of the levy payments were posted to tax periods not at issue in this suit." (Doc. 132. 3:16-3:17.) According to the declaration of IRS Agent Randy Reece, attached to the United States' February 4, 2010 reply, the IRS identified several levy payments made from the Vacantes' social security stipends in 2006 and 2007. These levy payments, however, did not offset the tax obligations forming the substance of this litigation:*fn20

December of 2006 [...] and ending of $398 in

The a month,

IRS received beginning levy in payments

March of in 2006 the amount

On March 6, 2006, a levy payment in the amount of $398 was of VIF posted

Insurance to the for

Form the

941 quarter employment ending taX

March liabilities

[...] 31, 1995 On the April amount

2006, levy payments in employment tax liabilities of VIF Insurance to the Form for 941 quarter ending March 31, 1993 [...] the On was

25, of

2006,

$398 and were

May 24, posted

June posted

23, to

2006, the a

Form levy

1040 payment in the amount of $398

tax liabilities for Ute Vacante individual for federal income

Vacantes late-filed a Joint Income 1994.

Tax When the

Vacante, abated the individual Return for

1994, against the

liabilities against the and assessed federal assessments

Ute IRS

late-filed Vacantes jointly for income tax

their return. Part 1994, per payment covered lien fees incurred of by the $398 levy to Ute Vacante's 1994 federal tax the IRS related remainder was transferred as a credit liabilities. The for the tax period ending December 31, 1998 [...] fund recovery penalties assessed against toward

Ute the

Vacante trust

On November

2006, October 3, 2006, in the amount of $398 were 2006, levy payments employment tax liabilities of posted

August 3,

3, 2006,

2006, and

September

3, 3,

December

VIF Insurance to the Form 941

quarter ending March 31, 1993 [...] for the

The each IRS month received beginning levy in payments

January in of the

2007 amount and ending of $409

May of 2007 [...] in On 2007,

January

2007,

2007, February 21,

3, 26,

January and 25,

payments employment in the amount of $409 25, 2007, levy 941 tax liabilities were of posted

March

2007,

April

VIF Insurance to the Form

the quarter ending March 31, 1993 [...] for On was May posted

23, to

2007, the a

Form levy

941 payment in the amount of $409

of VIF Insurance for the quarter employment ending taX

June liabilities

[...] 30, 1993 On in December the amount

26, of

2007,

$1309.05. the IRS received a levy payment

On January 24, 2007, and in the amount of $134.40. received levy payments received a levy payment in the

on February 28, 2007, the IRS

On March 28, 2007, the IRS the[se] levy payments were posted amount to of $120.30 [...]

recovery the tax period ending December 31, 1998 [...] penalties assessed against Frank the Vacante trust fund for

(Dec. of R. Reese, Doc. 133, ¶¶ 6-15.)

A graphical representation of Defendants' levy payments shows that the payments did not offset the tax obligations forming the substance of the government's motion:*fn21

Levy Date Amount Posted Acct Record 3/6/06 $398 Form 941 - Qtr End 3/31/95 Doc. 133, Ex.2 4/25/06 $398 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 5/24/06 $398 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 6/23/06 $398 Form 1040 - U. Vacante Doc. 133, Ex. 4

('94) & Trust Fund Penalty 8/3/06 $398 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 9/3/06 $398 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 10/3/06 $398 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 11/3/06 $398 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 12/3/06 $398 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 1/3/07 $409 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 1/25/07 $409 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 2/21/07 $409 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 3/26/07 $409 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 4/25/07 $409 Form 941 - Qtr End 3/31/93 Doc. 133, Ex. 3 5/23/07 $409 Form 941 - Qtr End 6/30/93 Doc. 133, Ex. 5 12/27/06 $130 Trust Fund Penalty - F. Doc. 133, Ex. 6

Vacante (Qtr End 12/31/98) 1/24/07 $134 Trust Fund Penalty - F. Doc. 133, Ex. 6

Vacante (Qtr End 12/31/98) 2/28/07 $134 Trust Fund Penalty - F. Doc. 133, Ex. 6

Vacante (Qtr End 12/31/98) 3/28/07 $120 Trust Fund Penalty - F. Doc. 133, Ex. 6

Vacante (Qtr End 12/31/98)

Similar to § V(A)(1), the United States provides substantial evidence establishing that the levy payments were used to offset other federal tax liabilities of the Defendants, not the liabilities at issue in this litigation. Defendants, in contrast, provide only two documents supporting their litigation position:

(1) an October 11, 2004 letter from the IRS to "Instant Services, Inc." describing a $52.84 Form 940 tax liability stemming from 2003 tax year, (Doc. 136, pgs. 82-83); and (2) a June 13, 2005 letter from the IRS to "Instant Services, Inc." outlining a $17,092.11 Form 941 tax arrearage stemming from the quarter ending December 31, 2001. (Doc. 136-2, pgs. 61-63.)

Neither document is relevant to the issues presented by the government's motion. The two letters relate to Form 940 and 941 employment taxes levied against Instant Services, Inc. for the 2001 and 2003 tax periods. In this regard, the letters bear little relation to the issues raised in the United States' motion - i.e., Form 940 and Form 941 employment taxes levied against Frank Vacante's sole proprietorship for the 1993 and 1994 tax periods. Defendants continue to conflate and confuse the issues raised in the Second Amended Complaint with those raised by the government's motion for summary judgment. They are not identical. Defendants' evidence is insufficient to rebut the presumption of correctness arising from the Form 4340s submitted by the government.*fn22

4. Form 940 and 941 Employment Taxes

Mr. Vacante argues that the government unfairly and without proper documentation assessed employment taxes against VIF Insurance for the 1993 and 1994 tax years. He asserts that he owes no employment tax for the years at issue because the monies Ute Vacante, Dan Belew, and Cynthia Burris received from VIF Insurance during those years did not constitute wages or income. Instead, the employees in question were treated as "independent contractors" and paid "commissions." The government responds to this argument by observing that the taxpayer bears the burden of persuasion in this litigation. It also contends that, despite Mr. Vacante's self-serving declaration, there exists adequate competent evidence to support the assessments in question.

To determine whether a factual dispute exists as to Mr. Vacante's employment tax liabilities, it is necessary to harmonize the arguments advanced - and evidence presented - by the parties during the two stages of briefing. In his original opposition, Mr. Vacante did not submit a signed declaration, relying instead on unsigned tax returns and various bank records. Mr. Vacante asserted VIF Insurance employees paid their own federal employment taxes during these two tax years, therefore any assessments against Defendants for this period were meritless:

All 3/31/94,

9/30/94, for 6/30/93,

9/30/93, 12/31/93, people worked paid. Three Belew III, Ute at

941 and

940 taxes

6/30/94,

VIF Insurance and Cynthia in 1993 were and

12/31/94

1994. Dan

Burris. self Medicare, on federal

there (Nunes)

Vacante,

All including three paid employment

(sic) tax, taxes Form

1040,

The total payroll and for by and 1994 was for

and 1993 state was tax.

VIF Insurance

$42,245.00

$49,248.64.

The

figures foundation. used the Plaintiff completely without

After 10 years the are

United States has only

produced three people who worked at VIF.

(Doc. 136, 2:1-2:4.)

The government responded with a number of evidentiary objections. According to the government, Mr. Vacante did not produce evidence or the possibility that he can produce evidence sufficient to overcome the presumption that the tax assessments levied by the IRS are correct. Specifically, as to Cynthia Burris, the government contended that "[t]he Vacantes did not include any evidence that Cynthia (Nunes) Burris paid self-employment taxes." (Doc. 132, 4:14-4:15.) The government correctly cited Rivera v. National R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) for the proposition that an unsupported assertion of self-payment does not create a genuine dispute of fact.

As to Dan Belew III, the government argued that unauthenticated and unsigned tax returns do not demonstrate that the assessment was incorrect:

The FormVacantes

1040 Tax included

Returns with that their memorandum copies of

returns of Dan claim tax

signed, Belew,

they are the

III. However, authentic the have these no returns are

not and Vacantes

they are have or submitted filed with the IRS. evidence that the Vacantes no evidence

Furthermore that Dan

Belew, III ever paid any self-employment tax.

(Doc. 132, 4:15-4:19.)

The government similarly objects to the use of Frank and Ute Vacante's Form 1040 tax returns to rebut the presumption of correctness:

The for Frank

Vacantes and included

Ute Vacante purported for Form 1040 Tax Returns

returns are unsigned and the 1993

Vacantes and 1994, have submitted but these

no evidence that they are authentic.

(Doc. 132, 4:20-4:22.)

The government's evidentiary objections are well-taken. In this Circuit, unauthenticated and unsigned tax returns are insufficient to place any material fact in controversy. See Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007) ("Rule 56(e) of the Federal Rules of Civil Procedure requires that a proper foundation be laid for evidence considered on summary judgment. The documents must be authenticated [....]"); see also Nat'l Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997) ("Conclusory allegations [...] without factual support, are insufficient to defeat summary judgment."); Cristobal v. Siegel,

26 F.3d 1488, 1494 (9th Cir. 1994) ("We have repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment."). Courts require the party claiming error to affirmatively produce evidence demonstrating that the assessment was incorrect, which Mr. Vacante did not do in his original opposition.

However, during oral argument on February 26, 2010, the Court instructed Mr. Vacante on the relevant legal standards, namely Federal Rule of Civil Procedure 56(e). Mr. Vacante requested an extension of time to file supplemental briefing, which was granted. As part of his supplemental briefing, Mr. Vacante did not submit a formal declaration, but his supplemental opposition to the motion for summary judgment, construed with the leniency typically afforded pro se parties in complying with procedural requirements, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), satisfies the requirements. In his declaration, which was signed under penalty of perjury, Mr. Vacante denies that VIF Insurance had the financial capacity to "employ" three individuals during the relevant tax years - and that the individuals were "independent contractors." He also asserts that the IRS' employment tax figures were incorrectly based on Central Valley Insurance Services, not VIF Insurance:

Insurance property from 1983-1994. sole

1. Frank services

Vacante as his owned sole and proprietorship operated VIF and Vacante notified the IRS on January 3, 1993

2. Frank that he no longer had employees.

3. No

Insurance payroll during tax was the due periods from Frank Vacante or VIF

3/31/93,

6/30/93,

9/30/93, 12/31/93, 3/31/94, 6/30/94,

9/30/94

12/31/94. or

4. VIF's business was 95% high risk auto insurance.

5. In

Prop 103, the California Insurance Initiative.

November 1989, the people of California passed

6. Prop policies,

103 limited restricted how profit insurance and companies dictated rated

reductions of 10%. rate

7. Many working of the with insurance companies represented

10-15% margin VIF time. were feasible a at the It companies with laws was majority of the comply withdrew the new so market. the a

not to

California placed a moratorium Many on new of business. the remaining from

VIF companies insurance

went companies to fewer than 10 in a matter of months. from representing greater than 100 insurance

8. VIF approximately

Services new policies went from selling

Insurance

to less than 15-25 per month by 1993. per month in 1989,

90-100

9. Due companies, to changes

VIF's in residual billing practices income by the insurance

1990-1994. These billing fell sharply from cancel policies. practices were designed to

10. Due Insurance did not need an office staff. to the reduction of business and clientele, VIF

11. All Vacante after January 1993. day to day business was handled by Mr. & Mrs.

12. All Cynthia direct

Nunes. sales Both were were handled licensed by Dan agents

Belew and

appointed represented. by insurance and

companies Department Insurance mandated California being

This the

practice for direct sales. and is an by industry the standard

of is

13. The was $42,245. total payroll for VIF Insurance Services in 1993

A. Frank and paid

Vacante all and taxes

Ute Vacante including received $16,150

income tax, due, employment tax and Medicare on Form 1040. social security tax, federal self

B. Dan reported

Belew on

1099 $16,495 all the to the IRS. as commission

III form received

Belew

Mr. federal

III income paid tax due including

employment tax and Medicare on his Form 1040. tax, social security tax, self

C. Cynthia reported Nunes on form received

1099 $9,600 has testified to the IRS. as commission (Burris) under Ms. Nunes deposition federal in this matter she oath paid during

income tax, social security that all

employment 1040. tax and Medicare tax due on tax, her Form self

14. The was $49,248. total payroll for VIF Insurance Services in 1994

A. Frank and paid

Ute Vacante received $22,170 income tax, social due, security including federal employment tax and Medicare on Form tax,

Vacante all and taxes

1040 self the year 1994. for

B. Dan reported

III received $17,478.64 as commission III paid all form the 1099 tax to due the including

Belew on

IRS. Mr. federal

Belew

income employment tax and Medicare on his Form 1040. tax, social security tax, self

C. Cynthia reported Nunes on form received

$9,600 the IRS. as commission

(Burris) has testified under Ms. Nunes deposition income this matter

1099 to

oath during federal in tax, social security that she paid all

employment 1040 [...] tax and Medicare tax due on tax, her self

Form

2[]. Forms interview

940 and or 941 investigation filed by the for

IRS the are not based on

3/31/94, 6/30/94, 9/30/94 or tax periods for these periods are 12/31/94. Assessments and Central

941 filed by the incorrectly

IRS on a different based on Forms 940

Valley Insurance Services was business. proprietorship of Dan Belew III [...] the sole (Doc. 145, 11:2-12:26, 14:1-14:6.)

The government responds that Mr. Vacante has still offered nothing to counter the evidence provided by the government, i.e., the Form 4340s are sufficient to establish that the tax assessments were correctly made. The government also objects to Mr. Vacante's evidence on grounds that it is unauthenticated, contains hearsay, and was not made on the basis of his personal knowledge. The government is correct; unauthenticated and unsigned tax returns are inadmissible to establish a genuine issue of material fact. See Bias, 508 F.3d at 1224. The same is true as to documents containing hearsay and statements lacking personal knowledge.

Despite these evidentiary objections, Mr. Vacante has submitted sufficient evidence to make out a triable issue as to whether, in 1993 and 1994, Ute Vacante, Dan Belew and Cynthia Burris were treated as independent contractors. Here, there are two conflicting interpretations on whether the workers at issue were "independent contractors" or "employees." Mr. Vacante declares that the individuals were paid "commissions," did not have specific job responsibilities or work functions, and operated largely outside a manager or "boss." (Doc. 145 at 11:2-14:6.) Additionally, it is undisputed that Mr. Vacante paid self-employment tax on his VIF Insurance income in 1993 and 1994, and that Ms. Burris reported $764.00 in self-employment tax in 1994. (Doc. 153, 4:22-4:25, 9:3-9:4.) Mr. Vacante also communicated to the IRS in 1993 that he did not have any "employees" and, according to his declaration, reconfigured his office structure based on dialogue with an IRS Agent. (Doc. 145, pg. 43; Doc. 145, 12:15-13:5.) All of these facts weigh in favor of independent contractor status.

This is contrary to the government's characterization of individuals working at VIF Insurance during the relevant time periods. Initially, the government assessed employment tax liabilities against Mr. Vacante based on wages paid by him in 1992, the deposition testimony of Cynthia Burris, and Ute Vacante's 1994 W-2 filing, which stated she was paid $75,000 by VIF insurance. However, the United States reduced Mr. Vacante's Form 940 and 941 tax liabilities for 1993 and 1994 based on figures he provided on March 12, 2010, where he describes the payments as "commissions."*fn23

Because Mr. Vacante's wage figures - the "commissions" - were accepted by the government, it is unclear if the original assessments still provide the foundation for the government's argument.*fn24

Even assuming the original assessments provide the basis for the government's characterization, there is a triable issue as to whether Mr. Vacante treated Ute Vacante, Dan Belew, and Cynthia Burris as employees for tax purposes in 1993 in 1994. With respect to Ms. Burris' deposition testimony, it is an insufficient basis to resolve the issue of employee v. independent contractor status. In her deposition, Ms. Burris does not clearly describe her duties, whether she invested in the insurance business or the generation of insurance leads, the level of professionalism required, or any number of circumstances relevant to whether an individual is an "employee" or an "independent contractor" for federal tax purposes. See United States v. Porter, 569 F. Supp. 2d 862 (S.D. Iowa 2008) (analyzing the twenty factors to consider when examining whether sufficient control existed to establish an employer-employee relationship). There is also record evidence that Ms. Burris considered herself to be an independent contractor, not an employee. (Doc. 153, 9:3-9:4 ("Th[e] [tax] return filed by Ms. Burris [in 1994] reported $764 in self-employment tax [....]".)

The same reasoning applies to the government's reliance on the wages paid by VIF Insurance in 1992 and the $75,000 in wages allegedly paid to Ute Vacante in 1994. First, the government's reliance on 1992 figures is contradicted by Mr. Vacante's declaration, in which he explains how the insurance business contracted following intense regulation. This added cost and regulatory oversight resulted in a severe reduction in VIF's workforce in 1993. Second, Mr. Vacante explained during February 26th's oral argument that he forged his wife's signature to obtain a bank loan. According to Mr. Vacante, he misrepresented to the bank that Ute Vacante made $75,000 in 1994 in order to invest in his insurance business and "get back on his feet." Contrary to the government's assertions, forging a signature is not dispositive of the independent contractor v. employee issue, which is "factually intensive." See Peno Trucking, Inc. v. C.I.R., 296 F. App'x 449 at *6 (6th Cir. 2008) ("It is settled that each [independent contractor v. employee] case must stand on its own facts, in light of all the existing circumstances, and that no one facet of the relationship is generally determinative.") (citation omitted). Moreover, the credibility of a witness is an issue for the jury. See, e.g., Bourns, Inc. v. Raychem Corp., 331 F.3d 704, 714 (9th Cir. 2003). Whether Mrs. Vacante did not have $75,000 in income is a disputed fact issue based on Mr. Vacante's assertion that he fabricated this amount to obtain a bank loan to save his business.

In an abundance of caution and in light of Mr. Vacante's pro se status, viewing the evidence in a light most favorable to him, there is a question of fact concerning whether Mr. Vacante treated his employees as independent contractors during the relevant tax periods. According to Mr. Vacante, the employees in question were treated as independent contractors and paid commissions.*fn25 If believed, a dispute exists whether Mr. Vacante's workers were independent contractors during the relevant tax periods. Trial is necessary to resolve factual issues surrounding the nature of the employees' working relationship and the level of investments made by these individuals.*fn26 The government's summary judgment motion is DENIED on this issue.

A factual dispute exists whether and to what extent Mr. Vacante treated Ute Vacante, Dan Belew and/or Cynthia Burris as employees or independent contractors. Defendants are pro se and appear to be unfamiliar with the Federal Rules of Evidence, and what constitutes admissible evidence under those rules. In preparing for trial, Defendants must become familiar with the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the Rules of the United States District Court for the Eastern District of California ("Local Rules").*fn27

5. Conclusion on the United States' Motion

After viewing the entirety of the evidence in the Vacantes' favor, drawing all inferences in their favor, the Vacantes' evidence does not raise a genuine issue of fact on the issue of Form 1040 income tax liabilities for the 2000 and 2004 tax years. Summary judgment is GRANTED in favor of the United States on this issue.*fn28

However, as to employment tax, Mr. Vacante has created a genuine dispute as to whether he treated his employees as independent contractors during the relevant tax periods. This issue must be determined by the trier of fact. The United States' motion is DENIED as to Mr. Vacante's employment tax liabilities - Forms 940 and 941 - for the 1993 and 1994 tax years.

B. Defendants' Motion for Summary Judgment

Defendants move for summary judgment, arguing that they did not have the requisite control over CVIS's finances and employees to hold them liable. According to Defendants, the deposition transcripts of Mariela Perez, Dan Belew III, and Ira White demonstrate that they did not have the ability to pay CVIS's taxes, did not have knowledge of the past due amounts, and did not take part in the financial decisions of CVIS.*fn29 Defendants, however, do not attach the deposition transcripts of Mrs. Perez, Mr. Belew, or Mr. White; they also do not attach a separate statement of undisputed facts as required by Local Rule 56-260.*fn30

The government primarily opposes Defendants' motion on grounds that it is unintelligible and does not comply with Local Rule 56- 260.*fn31 The government also maintains that there remains genuine issues of material fact concerning whether Defendants are "responsible parties" or "acted willfully" under 26 U.S.C. § 6672, the likely subjects of Defendants' motion.

Local Rule of Civil Procedure 56-260(a) provides, in part, that summary judgment motions shall be accompanied by "a statement of undisputed facts that shall enumerate discretely each of the specific material facts relied upon in support of the motion." E.D. Cal. R. 56-260(a). That rule also provides that the movant shall "cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact." Id. Defendants' motion neither includes nor is accompanied by a separate statement of material facts. Since Defendants carry the burden of setting forth facts that establish a genuine issue of material fact, their failure to present those facts is fatal to their motion for summary judgment. The motion fails to comply with the requirements of Local Rule 56-260(a) and is DENIED.

Assuming, arguendo, that Defendants' motion was properly supported, there remains a genuine issue of material fact concerning whether the Vacantes are "responsible parties" or "acted willfully" under 26 U.S.C. § 6672. In their motion, Defendants argue that the "deposition testimony [of several former employees] clearly shows that Defendants did not have the ability to pay over taxes of Central Valley Insurance, Inc." (Doc. 105, 1:17-1:19.) As best understood, this argument corresponds to the government's tax assessments against the Vacantes pursuant to 26 U.S.C. § 6672 and, to a lesser degree, to the claim that the Vacantes are directly liable for the taxes of CVIS based on an alter ego theory.

The Internal Revenue Code requires employers to withhold federal social security and individual income taxes from the wages of their employees. See 26 U.S.C. §§ 3102(a), 3402(a). Although an employer collects this money each salary period, payment to the federal government takes place on a quarterly basis. In the interim, the employer holds the collected taxes in "a special fund in trust for the United States." 26 U.S.C. § 7501(a). These taxes are known as "trust fund taxes." See Slodov v. United States, 436 U.S. 238, 243 (1978).

If an employer fails to pay over collected trust fund taxes, "the officers or employees of the employer responsible for effectuating the collection and payment of trust fund taxes who willfully fail to do so are made personally liable for a 'penalty' equal to the amount of the delinquent taxes" under 26 U.S.C. § 6672. Slodov, 436 U.S. at 244-45. Section 6672 provides, in relevant part:

account

Any for, person and pay required over any to collect, truthfully willfully fails taX

to collect imposed tax, by this account ... or truthfully title who

such such

not penalty and collected, equal to the tax total amount shall ... be

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26 U.S.C. § 6672.

For the purposes of § 6672, a "person" includes "an officer or employee of a corporation ... who ... is under a duty to perform the act in respect of which the violation occurs." 26 U.S.C. § 6671(b). Thus, an individual is liable for a penalty under Section 6672 if (1) he is a "responsible person"; and (2) if he acts willfully in failing to collect or pay over the withheld taxes. Davis v. United States, 961 F.2d 867, 869-70 (9th Cir. 1992).*fn32

1. Responsible Person

The Ninth Circuit has consistently identified persons who have "the final word as to what bills should or should not be paid, and when" as "responsible" persons under § 6672. Purcell v. United States, 1 F.3d 932, 936 (9th Cir. 1993). A person has the final word if that person had "the authority required to exercise significant control over the corporation's financial affairs, regardless of whether he exercised such control in fact." Purcell, 1 F.3d at 937. In other words, responsibility is a matter of status, duty, and authority, not knowledge. Davis, 961 F.2d at 873 (upholding the trial court's finding of "responsible person" based on the plaintiff's position as the president, member of the board, and major shareholder, even though the plaintiff had no knowledge of the tax default). "Authority turns on the scope and nature of an individual's power to determine how the corporation conducts its financial affairs; the duty to ensure that withheld employment taxes are paid over flows from the authority that enables one to do so." Purcell, 1 F.3d at 936.

In the absence of an admission of responsibility, there are various factors which are indicative of significant control. These factors include "the individual's duties as outlined in the corporate bylaws, his ability to sign checks, his status as an officer or director, and whether he could hire and fire employees." Hochstein v. United States, 900 F.2d 543, 547 (2nd Cir. 1990); see Jones, 33 F.3d at 1140 (approving use of the Hochstein factors). Other courts have identified additional factors, such as whether the individual held stock in the corporation and whether the individual's signature is on the employer's federal quarterly and other tax returns. Greenberg v. United States, 46 F.3d 239, 243 (3rd Cir. 1994).

The United States has submitted evidence that Defendants were owners of CVIS during the relevant tax periods, had sizeable entrepreneurial interests in the company, had check signing authority, controlled the financial affairs of the company, and were CVIS's only corporate officers. (United States' Statement of Facts in Support of Opposition to Motion for Summary Judgment, Doc. 128-2, No. 4, 9.) There is also evidence in the record that Frank Vacante had the authority to hire and fire employees, which he exercised on a number of occasions. (Id. at 7, 10.) Ute Vacante also had explicit signature authority over CVIS's bank accounts. (Id.)

Significantly, Defendants do not offer any evidence that they lacked the authority to pay CVIS's taxes. See Alsheskie v. United States, 31 F.3d 837, 839 (9th Cir. 1994) (distinguishing the district court's finding that the plaintiff was not a responsible party from a case where "the record contained no evidence that ... the responsible party was without authority to pay the taxes."). Defendants' arguments regarding their responsibility focus almost entirely on the delegation of responsibility to Ute Vacante's son, Dan Belew III. This argument is not well-taken. It is well-established that the duty to ensure that withholding taxes are collected and paid over to the government is non-delegable. See Purcell, 1 F.3d at 936 (responsibility to pay taxes cannot be delegated); Keller v. United States, 46 F.3d 851, 854 (8th Cir. 1995)("an otherwise responsible person does not avoid liability under section 6672 by delegating his authority to another."); Thomsen v. United States, 887 F.2d 12, 17 (1st Cir. 1989) ("delegation will not relieve one of responsibility; liability attaches to all those under the duty set forth in the statute.").

The evidence introduced by the parties on the question of responsibility is conflicting and susceptible of at least two reasonable interpretations for the tax periods at issue. Defendants' motion is DENIED as to this issue.

2. Willfulness

In the Ninth Circuit, willfulness under § 6672 is defined as a "voluntary, conscious and intentional act to prefer other creditors over the United States." Phillips v. United States, 73 F.3d 939, 942 (9th Cir. 1996) (quoting Klotz v. United States, 602 F.2d 920, 923 (9th Cir. 1979)). The Ninth Circuit holds that "[i]f a responsible person knows that withholding taxes are delinquent, and uses corporate funds to pay other expenses..., our precedents require that the failure to pay withholding taxes be deemed 'willful.'" Buffalow v. United States, 109 F.3d 570, 573 (9th Cir. 1997) (quoting Phillips, 73 F.3d at 942). The Ninth Circuit recognizes two ways by which the government can establish willfulness. First, the government may show that the responsible person had actual knowledge that payroll taxes were not being collected or paid over, and thereafter made payment to a non-IRS creditor. Second, a responsible person may be deemed "willful" if he or she acted in "reckless disregard of whether the taxes [were] being paid over." Phillips, 73 F.3d at 942 (stating that a "responsible person" is liable under the reckless disregard standard if he (1) clearly ought to have known that (2) there was a grave risk that withholding taxes were not being paid and if (3) he was in a position to find out for certain very easily.).

A review of the summary judgment evidence reveals a genuine and heated dispute on the ultimate issue of whether Defendants clearly ought to have known that there was a grave risk that withholding taxes were not being paid and if she was in a position to find out for certain very easily. The government contends that Frank Vacante acted with "reckless disregard" by failing to ensure that CVIS's taxes were paid after learning about its tax delinquency. (Doc. 128-2, No. 2.) To support its contention, the government relies on the fact an IRS Revenue Officer contacted Mr. Vacante over a dozen times to inform him of the delinquency. (Id.) In addition, Judgment was entered against Mr. Vacante in 2003 concerning failure to pay trust fund recovery penalties for his business in 1989 and 1990. (Id.) According to the government, Mr. Vacante avoided paying the judgment against him, "chang[ing] the name of the business to Central Valley and set[ting] up a figurehead to conceal his interest in the business." (Doc. 128, 13:21-13:22.)

As to Ute Vacante, the government emphasizes that she was the chief financial officer of CVIS, had express signing authority, and certainly knew that the business had bounced a number of checks and was in financial distress. The government additionally points to the IRS Revenue Officer's dozen calls to the Vacantes, alerting them to the tax delinquency, and her marriage to Frank Vacante -who had previously been held liable under § 6672. These circumstances, the government argues, created a risk that CVIS was delinquent and made it incumbent upon Ute Vacante to ensure that the government was being paid before making payments to non-IRS creditors.

The government contends that this evidence creates a genuine issue of material fact as to willfulness and supports a denial of Defendants' summary judgment motion. The government is correct. A reasonable jury, considering all the evidence, could find that Frank and Ute Vacante were responsible persons and/or acted willfully as those terms are defined by § 6672. Defendants' motion for summary judgment is DENIED.

C. Defendants' Motion to Dismiss

Defendants filed their motion to dismiss on December 16, 2009, two days after the December 14, 2009 deadline for the filing of dispositive motions set by the Amended Scheduling Order.*fn33 The Original Scheduling Order in this case set the deadline for filing dispositive motions on November 2, 2009. (Doc. 66.) On September 11, 2009, the United States moved to extend discovery and modify the scheduling order. (Doc. 75.) Defendants opposed the motion, arguing that the United States already "had over eighteen thousand pages of documents [and] all credit card information Defendants have or can acquire." (Doc. 88.) The United States' motion was granted on September 11, 2009 and the dispositive motion deadline was continued to December 14, 2009. (Doc. 89.)

"Federal Rule of Civil Procedure 16 vests the district court with early control over cases 'toward a process of judicial management that embraces the entire pretrial phase, especially motions and discovery.'" In re Arizona, 528 F.3d 652, 657 (9th Cir. 2009) (quoting Fed. R. Civ. P. 16 advisory committee's note, 1983 Amendment). Courts have "broad discretion in supervising the pretrial phase of litigation," including the authority to determine "the preclusive effect of a pretrial order." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). It is not an abuse of discretion for a court to deny or strike a motion on the basis that it is untimely filed according to the timetable set by the scheduling order. Id. at 610. Nevertheless, before the final pretrial conference the scheduling order may be modified upon a showing of "good cause and with the judge's consent." Fed. R .Civ. P. 16(b)(4); see Johnson, 975 F.2d at 608 (noting that the deadlines set by the scheduling order govern the action "unless modified by the court"). The Rule 16 "good cause" inquiry "primarily considers the diligence of the party seeking the [modification of the order]." Johnson, 975 F.2d at 609.

Defendants have not attempted to show that the pretrial schedule could not reasonably have been met despite their diligence. See id. (quoting advisory committee notes to Rule 16). In particular, Defendants do not provide a single reason for failing to comply with the Rule 16 Scheduling Order in this case. More problematic is that Defendants did not request an extension of the December 14, 2009 deadline despite previously objecting to Plaintiff's motion for an extension; they also filed the motion without seeking leave of Court. Defendants do not establish that their failure to follow the deadlines under the Modified Scheduling Order and Federal Rules of Civil Procedure was anything more than inadvertence - or something more flagrant. Plaintiff does not provide a sufficient basis on which the Court may permit a late filing under Rule 16.

Allowing Defendants' motion to dismiss, without a showing of diligence or good cause, prejudices the United States and imposes on the management of the Court's docket. See Wong, 410 F.3d at 1060 ("In these days of heavy caseloads, trial courts ... set schedules and establish deadlines to foster the efficient treatment and resolution of cases."); Mammoth Recreations, Inc., 975 F.2d at 610 ("Disregard[ing] the [scheduling] order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.")

Defendants' motion to dismiss is also deficient under Rule 7(b) of the Federal Rules of Civil Procedure. Rule 7(b) requires that all motions filed with the court detail with sufficient "particularity the grounds therefor." The specificity requirement of Rule 7(b) has generally been interpreted liberally. See Intera Corp. v. Henderson, 428 F.3d 605, 613 (6th Cir. 2005); see also Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670, 670-71 (9th Cir. 1985). However, at a minimum, it must be applied so as to provide the opposing party with sufficient information to respond, and the Court with sufficient information to rule on the motion. Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 808 (Fed. Cir. 1990). Defendants' motion does not satisfy this standard. At this time, it is not possible to reconcile Defendants' unintelligible arguments with the corresponding actions filed by the government.

In addition, as the government's opposition to Defendants' motion to dismiss recognizes, Defendants have failed to show that they have exhausted the administrative remedies required by 26 U.S.C. § 7433(d) and 26 C.F.R. § 301.7433-1(d)-(e). See 26 U.S.C. § 7433(d)(1) ("A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service."); see also 26 C.F.R. § 301.7433-1(d)-(e) (detailing the procedures for a taxpayer to exhaust administrative remedies). While Defendants appear to argue that they exhausted their administrative remedies by corresponding with various IRS officials, a large volume of correspondence does not equate to exhaustion of remedies. See id. ("An administrative claim [...] shall be sent in writing to the Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides."). Here, there is no evidence that Defendants filed any administrative claim(s) under 26 U.S.C. § 7433(d) or Treasury Regulation § 301.7433-1(e).

Defendants' motion to dismiss is untimely and does not comply with Rule 7(b) of the Federal Rules of Civil Procedure. Defendants also fail to exhaust administrative remedies required by 26 U.S.C. § 7433(d). The motion is DENIED and the merits are not considered.

V. CONCLUSION

For the foregoing reasons:

(1) The government's motion for summary judgment is GRANTED in part and DENIED in part. Defendants fail to identify any facts rebutting the legitimacy of the government's Form 4340s as to the 2000 and 2004 tax assessments. However, as to employment tax, a factual dispute exists whether and to what extent Mr. Vacante treated Ute Vacante, Dan Belew and/or Cynthia Burris as employees or independent contractors.

(a) Defendant Frank Vacante is indebted to the United States for unpaid federal income tax liabilities for the tax year 2000 and 2004 in the amount of $11,360.75 as of December 1, 2009, plus further interest and statutory additions as allowed by law;

(b) Defendant Ute Vacante is indebted to the United States for unpaid federal income tax liabilities for the tax year 2000 and 2004 in the amount of $11,360.75 as of December 1, 2009, plus further interest and statutory additions as allowed by law;

(c) Mr. Vacante has created a genuine dispute as to whether he treated his employees as independent contractors during the relevant tax periods. This issue must be determined by the trier of fact. The United States' motion is DENIED on this issue.

(2) Defendants' motion for summary judgment is DENIED as it fails to comply with the requirements of Local Rule 56-260(a). Additionally, a reasonable jury, considering all the evidence, could find that Frank and Ute Vacante were responsible persons and acted willfully as those terms are defined by § 6672; and

(3) Defendants' motion to dismiss is untimely and does not comply with Rule 7(b) of the Federal Rules of Civil Procedure. The motion is DENIED.

The United States shall submit a form of order consistent with, and within five (5) days following electronic service of, this memorandum decision.

IT IS SO ORDERED.


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