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United States v. Vacante

June 2, 2010

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



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S MOTION TO STRIKE JURY DEMAND (Document 99)

Plaintiff United States of America ("Plaintiff" or "United States") filed the instant motion to strike the jury demand of Defendants Frank Vacante and Ute Vacante. The matter was heard on December 4, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Guy Jennings appeared telephonically on behalf of Plaintiff. Defendant Frank Vacante appeared telephonically in pro per.

BACKGROUND

On June 10, 2008, Plaintiff filed the present complaint to: (a) reduce federal tax assessments to judgment; (b) adjudicate that Frank Vacante and Ute Vacante are alter egos of Central Valley Insurance Services, Inc. ("CVIS"), and Instant Services, Inc.; (c) adjudicate that CVIS is a successor-in-interest to the Frank and Ute Vacante insurance business and that Instant Services, Inc., is a successor-in-interest to CVIS; and (d) foreclose federal tax liens on real property.*fn1 The tax assessments at issue are against Frank and Ute Vacante and their alleged alter egos, CVIS and Instant Services, Inc. The remaining Defendants were named because they may claim an interest in the real property that is the subject of the action. The subject real property consists of five parcels in Turlock, Riverbank, Ceres and Hilmar, California owned by the Vacantes. Numerous Notices of Federal Tax Liens have been filed against the properties.

Most Defendants, including the Vacantes, filed answers to the original complaint.

On September 14, 2009, Plaintiff filed a second amended complaint ("SAC"). According to the SAC, the Vacantes have operated an insurance business since at least 1987. By November 1992, the Vacantes' unincorporated business had unpaid federal employment tax liabilities and the IRS assigned the case to a Revenue Officer for collection. To avoid the tax liabilities, Plaintiff alleges that Frank Vacante filed an Employer's Quarterly Federal Tax Return falsely indicating that the unincorporated business no longer had employees. Plaintiff further alleges that the Vacantes incorporated CVIS in August 1993 and transferred the assets of the unincorporated business to CVIS. The State of California suspended the corporate charter of CVIS in April 1997, but the Vacantes continued to operate it until at least 2001. In March 2001, the California Department of Insurance closed CVIS. Instant Services, Inc., was incorporated in Nevada on March 23, 2001. Plaintiff alleges that the unincorporated business, CVIS and Instant Services were all operated out of the same business location, employed the same staff, sold the same product and utilized the same phone numbers. They were all operated under Frank Vacante's broker's license.

On March 7, 2003, this Court entered judgment by default against Frank Vacante for unpaid employment taxes and federal unemployment taxes in the amount of $21,087.91, plus interest, penalties and other statutory additions from November 1, 2002 until paid.*fn2

Trial in this matter is scheduled for June 4, 2010.

On November 16, 2009, Frank Vacante filed a "Motion for Jury Trial." Although the motion purportedly was filed on behalf of both Frank and Ute Vacante, the motion was signed only by Frank. Additionally, Frank erroneously filed the motion in the original Sacramento case, 2:08cv1310 MCE KJM, which was transferred to Fresno in September 2008.*fn3

On November 17, 2009, Plaintiff filed the instant motion to strike the Vacantes' jury demand. The Vacantes did not respond to the motion to strike.

On November 24, 2009, Plaintiff filed an opposition to the Vacantes' motion for jury trial. The Vacantes did not reply.

On November 30, 2009, Defendant Frank Vacante filed a four-page motion for summary judgment.

On December 2, 2009, Defendant Frank Vacante filed the "Motion for Jury Trial." The document appears to be a copy of the motion ...


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