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United States v. Thompson

United States District Court, District of Nebraska

March 24, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
HARLAN M. THOMPSON, DIANE C. THOMPSON, CAPITOL ONE BANK, DISCOVER BANK, MAPLE LEAF FUNDING, Defendants.

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge.

This matter is before the court on the United States' (hereinafter, "the Government's") motion for summary judgment, Filing No. 64; the government's motion for default judgment against Maple Leaf Funding, a "Pure" Trust (hereinafter, "Maple Leaf"), Filing No. 65; and the defendants Harlan and Diane Thompson’s motion to deny the government’s motion for summary judgment, Filing No. 99. This is an action to reduce to judgment a federal income tax deficiency owed by Harlan M. Thompson and Diane C. Thompson; to obtain a judicial determination that Maple Leaf Funding is the nominee of Harlan Thompson and Diane Thompson; and to foreclose the United States’ federal tax liens encumbering certain real property in Dixon County, Nebraska. This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1340 and 1345 and 26 U.S.C. §§ 7402 and 7403.

In its complaint, the government alleges that the defendants Harlan and Diane Thompson have failed to pay taxes, interests and penalties for the years 2002, 2003, 2005, 2006 and 2007.[1] The Internal Revenue Service (IRS) wishes to foreclose on property owned by the Thompsons, in Dixon County, Nebraska.[2] Defendants Harlan Thompson, Diane Thompson, and Maple Leaf Funding, pro se, filed an answer generally denying the allegations and asserting several defenses.[3] Filing No. 9.

Defendants Thompsons reside in Wakefield, Nebraska. The IRS audited the Thompsons 2002 and 2003 income tax returns in 2005 and determined they underreported for those years. The Thompsons further failed to pay taxes for 2005, 2006 and 2007. Subsequently, the Thompsons filed what the IRS considered to be frivolous returns, and the Commissioner of the IRS assessed the Harlan Thompson penalties and interest as follows:

Tax Year

Assessment Date

Amount Due as of October 1, 2014

2005

12/22/08

12/29/08

12/06/10

$24, 026.47

2006

12/22/08

$12, 231.93

2007

12/22/08

$24, 463.89

Total:

$60, 722.29

Filing No. 88 at ECF p.5

The IRS further assessed Diane Thompson penalties and interest as follows:

Tax Year

Assessment Date

Amount Due as of October 1, 2014

2005

12/22/08

12/6/2010

$5, 691.97

2007

12/22/08

$11, 525.53

Total:

$17, 217.50

Filing No. 88 at ECF p.6

As a result of the above, the government contends that federal tax liens against the Thompsons’ property arose pursuant to 26 U.S.C. §§ 6321 and 6322 as of the dates of the assessments. The IRS filed federal tax liens on April 21, 2008, with regard to the Thompsons for 2005, 2006 and 2007 federal income tax liabilities; and on February 9, 2010, with regard to Diane Thompson for 2005, 2006, and 2007; and on July 8, 2010, with regard to Harlan Thompson’s civil penalties for 2005, 2006 and 2007; and on Diane Thompson’s 2007 liability on August 4, 2010; and on Harlan Thompson’s 2005 liability on September 28, 2010. The IRS also filed civil penalties for 2005 for Harlan and Diane Thompson on March 24, 2011, all in Dixon County, Nebraska, Register of Deeds.

DISCUSSION

A. Maple Leaf

By order dated August 20, 2013, this court granted the motion to strike the answer filed by defendants Harlan M. Thompson and Diane C. Thompson to the extent it was purportedly filed on behalf of defendant Maple Leaf Funding, because a trust cannot litigate its action in this forum without representation by licensed counsel. Filing No. 14, Order. Defendant Maple Leaf was ordered to obtain the services of counsel and have that attorney file an appearance on its behalf on or before September 6, 2013, and warned that in the absence of which the court would file an entry and/or judgment of default against it without further notice. Id. The Clerk of Court later filed an entry of default against Maple Leaf. Filing No. 21. The government now moves for default judgment against Maple Leaf, Filing No. 65. The court finds that the ...


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