Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00455-W-BLM

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KAREN P. HEWITT United States Attorney TOM STAHL, California State Bar No. 78291 Assistant United States Attorney Chief, Civil Division LAUREN M. CASTALDI Trial Attorneys, Tax Division U.S. Department of Justice P.O. Box 683, Ben Franklin Station Washington, D.C. 20044-0683 Telephone: (202) 514-9668 Facsimile: (202) 307-0054 E-mail: [email protected] [email protected] Attorneys for the United States of America

10 11 12 13 14 15 16 17 18 19 20 The United States of America, by and through its undersigned counsel, hereby responds to the 21 numbered allegations of the Petition as follows: 22 1. 23 2. 24 3. 25 4. 26 5. 27 28 -1Answer The United States admits the allegations in paragraph five. The United States admits the allegations in paragraph four. The United States admits the allegations in paragraph three. The United States admits the allegations in paragraph two. The United States admits the allegations in paragraph one. ) ) VACANT LAND LOCATED IN SAN DIEGO) COUNTY APNS 279-150-22 AND 280-140-10) ) ) ) ) ) ) ) IN RE: Case No. 3:08-CV-00455-W-BLM THE UNITED STATES' ANSWER TO THE PETITION IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Case 3:08-cv-00455-W-BLM

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6. 7. 8.

The United States admits the allegations in paragraph six. The United States admits the allegations in paragraph seven. The United States presently lacks knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph eight. 9. The United States presently lacks knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph nine. 10. The United States presently lacks knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph ten. 11. 12. The United States admits the allegations in paragraph eleven. The United States admits the allegations in paragraph twelve, however denies that it is a

complete list of potential claimants. 13. The United States presently lacks knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph thirteen. The United States also denies that the Internal Revenue Service received proper notice. 14. The United States presently lacks knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph fourteen. 15. The United States presently lacks knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph fifteen. 16. The United States admits the allegations in paragraph sixteen.

CLAIM OF UNITED STATES OF AMERICA TO EXCESS FUNDS Comes now the United States of America, by and through its undersigned counsel, asserting a claim against the surplus funds as follows: 17. A duly authorized delegate of the Secretary of Treasury made assessments on the

following dates against taxpayers, Michael J. Spiker and Nancy S. Spiker, as follows: Tax Period June 2002 Type of Tax 6672 Date Assessed 10/24/2005 -2Amount Assessed $18,361.90 Answer

Case 3:08-cv-00455-W-BLM

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December 2002 March 2003 June 2003 September 2003 December 2003 March 2004 June 2004

6672 6672 6672 6672 6672 6672 6672

10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005 10/24/2005

$16,871.08 $30,649.82 $30,024.23 $29,426.57 $6,286.80 $9,807.08 $4,334.84

18.

On the dates of assessment referred to in paragraph 17 above, liens in the respective

amounts of the assessments arose in favor of the United States on all property and rights to property, whether real or personal, belonging to Michael J. Spiker and Nancy S. Spiker under 26 U.S.C. § 6321. 19. Pursuant to § 6323, a Notice of Federal Tax Lien with respect to the above-described

assessments against Michael J. Spiker and Nancy S. Spiker was filed with the San Diego County Recorder's Office on June 9, 2006. 20. Despite proper notice and demand for payment of the assessments referred to in paragraph

17 above, Michael J. Spiker and Nancy S. Spiker, have neglected, failed, or refused to make full payment of the assessed amounts to the United States, and there remains due and owing, as of March 31, 2008, the sum of $156,779.16 on said assessments plus statutory interest accrued after March 31, 2008, less any payments or credits. 21. The United States claims an interest in the real property at issue, and any funds to be paid

from its sale, by virtue of its statutory liens against the property of Michael J. Spiker and Nancy S. Spiker. FIRST ADDITIONAL DEFENSE 22. Although the United States has an interest in this action by virtue of federal tax liens, it

was not properly served in this matter. 28 U.S.C. § 2410(b); Fed. R. Civ. P. 4(i). Neither the United States Attorney for the Southern District of California nor the Attorney General were properly served.

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Answer

Case 3:08-cv-00455-W-BLM

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WHEREFORE, the United States prays that the Court: A. B. Declare that the United States has a valid tax lien encumbering the real property at issue; Determine the rights, titles, and interests of the parties in and to the funds, and distribute

the funds in accordance therewith; and C. Grant the United States its costs and such other and further relief as is just and proper.

Respectfully submitted this 25th day of March, 2008.

KAREN P. HEWITT United States Attorney TOM STAHL Assistant United States Attorney Chief, Civil Division /s/ Lauren Castaldi LAUREN M. CASTALDI Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 683 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 514-9668 Facsimile: (202) 307-0054 [email protected] [email protected]

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Answer