JOHNSON v. U.S., (N.D.Ga. 2004)

G. ERNEST TIDWELL, Senior District Judge

The above-styled matter is presently before the court on defendant's motion for summary judgment on count II of plaintiff's complaint [docket no. 20].

On February 20, 2003, pursuant to 26 U.S.C. § 6330(d)(1), plaintiff filed the instant action for judicial review of the Internal Revenue Service ("IRS")'s determination to collect a tax penalty by levying on plaintiff's property. On October 3, 2003, this court granted summary judgment in favor of defendant. and against plaintiff as to count I (plaintiff's tax liability) and count III (due process).

On March 22, 2004, defendant moved for summary judgment as to count II. Count II alleges that the IRS has not applied the appropriate credits and payments to plaintiff's account. As of the return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 299-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 298. Thus, to create a genuine issue of material fact: for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S. at 323.

In light of the foregoing standard, the court finds the following facts for the purpose of resolving defendant's motion for summary judgment only. PCT Services, Inc. failed to pay fully income and social security taxes fcr it.s employees for all of 1993, 1994, and the first. calendar quarter of 1995. Plaintiff was the employee who collected, accounted for, and paid taxes on behalf of PCT Services, Inc. Pursuant to 26 U.S.C. § 6672, the IRS assessed a penalty against plaintiff in the amount of $1,504,201.31.

After the penalty was assessed, plaintiff filed for bankruptcy. The IRS filed a "proof of claim," and plaintiff did not. object or challenge the claim. The bankruptcy court confirmed plaintiff's plan of reorganization; however, plaintiff defaulted on his payments. Subsequently, the IRS proceeded to collect the full amount due of the assessment.

The only issue raised by Count II of the complaint is whether the IRS has accounted for all payments made by plaintiff and all credits that should be applied to the tax penalty. Or. December °, 2003, defendant sent plaintiff a "First Request for Admission." Defendant requested that plaintiff admit that the "transcript of account attached to [the Request for Admission] reflect all payment and credits to which plaintiff is entitled with respect to the Section 6672 penalty. . . ." The statement attached to the Request for Admission lists $184,925.94 in credits to plaintiff's account.

The Federal Rules of Civil Procedure states that a Request for Admission "is admitted unless, within 30 days after service of the request, . . . The parry to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the parry or by the party's attorney." Fed.R.Civ.P. 36(a). Moreover, "any matter admitted under [Rule 36] is conclusively established. . . ." Fed.R.Civ.P. 36(b). Defendant served plaintiff a copy of the Request for Admission by mail on December 8, 2003. As of the date of this order, plaintiff has not. responded or objected to the Request fox Admission. As such, no dispute of fact exists with regards to the amount of credit applied to plaintiff's tax penalty. Therefore, defendant's motion for summary judgment on count II [docket no. 20] is GRANTED.

Defendant's motion for summary judgment on count II [docket no. 20] is GRANTED.