JOHN STEELE, District Judge
This matter comes before the Court on Plaintiff's Motion For Partial Summary Judgment (Doc. #21) and accompanying memorandum of law in support (Doc. #22) filed on October 10, 2003. Plaintiff also filed a Statement of Material Facts with an attached declaration (Doc. #23) in support of its motion. Defendants Dennis R. Streeter, Jacquelyn Streeter, Larry M. New, and Cheryl A. New filed a Memorandum of Law in Opposition on October 21, 2003. (Doc. #25). The remaining defendants (John W. Bartle, Charles E. Greer, as Receiver for Inverness Corporation, and HSBC Bank) have not filed a response to plaintiff's motion. Plaintiff filed a Reply Brief (Doc. #31) on November 14, 2003 with leave of court. Plaintiff's Complaint (Doc. #1) seeks to foreclose federal tax liens for the tax liabilities of defendant John W. Bartle, upon certain real property located in Sanibel, Florida. For the reasons set forth below, the Court denies plaintiff's motion for partial summary judgment.
These defendants filed two memoranda of law in opposition (Docs. #24 25) which appear to be identical. The Court will refer to the latter filed one (Doc. #25).
Plaintiff represents that Charles Greer, as Receiver for Inverness Corporation, and HSBC Bank do not oppose this motion. (Doc. #21, p. 4).
I.
Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 (c). An issue is "genuine" if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it may affect the outcome of the suit under governing law. Id. The moving party bears the burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 840 (11th Cir. 2000), cert. denied, 534 U.S. 815 (2001). In order to avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party's case, and the elements on which that party will bear the burden of proof at trial.Celotex Corp., 477 U.S. at 322; Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).
In ruling on a motion for summary judgment, the Court is required to consider the evidence in the light most favorable to the nonmoving party. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000); Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir. 1995). The Court does not weigh conflicting evidence or make credibility determinations. Hilburn, 181 F.3d at 1225. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Tullius v. Albright, 240 F.3d 1317, 1320 (11th Cir. 2001), quoting demons v. Dougherty County, 684 F.2d 1365, 1369 (11th Cir. 1982).
II.
Plaintiff United States of America (plaintiff) seeks to foreclose federal tax liens for the tax liabilities of defendant John W. Bartle (Bartle), upon certain real property located at 1658 Sabal Palm Drive in Sanibel, Florida (the Sabal Palm property). These tax liabilities were assessed against Bartle by a delegate of the Secretary of the Treasury pursuant to 26 U.S.C. § 6672 on numerous occasions between February 2, 1994 and February 4, 2002. Bartle received notice of these assessments and demands for their payments, but has not fully paid the assessed liabilities. As a result of this failure to pay, federal tax liens in the amount of the assessments, plus interest and other statutory additions, arose on the dates of the assessments, and attached to all property and rights to property of Bartle, including after-acquired property, pursuant to 26 U.S.C. § 6321, 6322.
Plaintiff represents that over $1.9 million remains due and owing on Bartle's assessed liabilities. (Doc. #1, ¶ 16).
On or about March 28, 1994, Bartle and defendants Dennis R. Streeter and Jacquelyn Streeter (the Streeters), and defendants Larry M. New and Cheryl A. New (the News) acquired ownership of the Sabal Palm property. According to plaintiff, the Streeters and the News sold their interest in the Sabal Palm property to Bartle as president of the Inverness Corporation (Inverness) in 1998. Plaintiffs contend that Bartle used Inverness Corporation as "his nominee" and that Bartle was the "true purchaser" of the Sabal Palm property. Thus, it is plaintiff's position that the Streeters and the News no longer hold any ownership interests in the Sabal Palm property, although plaintiff acknowledges that the Streeters and the News "are not yet willing to formally acknowledge" such. (Doc. #21, p. 2). Plaintiff further acknowledges that it may be necessary "to take formal written discovery, and perhaps even to file a written motion" to establish that the Streeters and the News are no longer owners of the Sabal Palm property. (Id.)
Inverness is currently under the control of a Receiver, Charles E. Greer, who has been named as a defendant in this case in that capacity. HSBC Bank is also named as a defendant as it may claim an interest in the Sabal Palm property.
III.
"A federal tax lien is placed on all property and rights to property when a person who is liable to pay any tax does not do so after the Government demands payment." Capuano v. United States, 955 F.2d 1427, 1429 (11th Cir. 1992), citing 26 U.S.C. § 6321. The lien is enforceable in a lien-foreclosure suit seeking the sale of real property pursuant to 26 U.S.C. § 7403. United States v. Rodgers, 461 U.S. 677, 690-91 (1983). Any property in which the taxpayer has "`any right, title, or interest'" is subject to foreclosure proceedings, including property in which others claim an interest, so long as all persons "`having liens upon or claiming any interest in the property'" are joined as parties to the suit. Id. at 692-93, quoting 26 U.S.C. § 7403(a) (b). After determining the merits of "`all claims to and liens on'" the property and finding a claim or interest of the United States, the Court may decree a sale of the entire property and "`a distribution of the proceeds of such sale according to the findings of the court in respect to the interest of the parties and of the United States.'" Id. at 693-94, quoting 26 U.S.C. § 7403(c).
Plaintiff contends that even though it disputes the claimed ownership interests of the Streeters, the News, and Inverness, the federal tax liens have attached at least to Bartle's undivided one-third interest in the Sabal Palm property. Thus, plaintiff contends that partial summary judgment is appropriate to have its liens upon the Sabal Palm property foreclosed and the entire property sold "for the application of at least a portion of the net sale proceeds" to Bartle's unpaid assessed tax liabilities. (Doc. #21, p. 3). Plaintiff requests that after the payments of the costs of the sale and any unpaid real estate taxes or other priority claims, and after the payment to the United States of an amount representing Bartle's one-third ownership interest, the remaining net sale proceeds be placed in escrow pending a resolution of the remaining ownership issues. (Id.) The Court concludes that § 7403 precludes the relief plaintiff seeks at this time.
As the Supreme Court has recognized, plaintiff's right to seek a forced sale of property for unpaid assessed tax liabilities arises out of "the express terms of [26 U.S.C.] § 7403." Rodgers, 461 U.S. at 697. Under the express terms of § 7403, as explained above, the Court "shall . . . determine the merits of all claims to and liens upon the property, and, in all cases where a claim or interest of the United States therein is established, may decree a sale of such property[.]" 26 U.S.C. § 7403(c). Thus, § 7403 imposes a mandatory requirement on the Court to determine the merits of all claims and liens and then a discretionary requirement on the Court to decree a sale of the property. Plaintiff seeks to reverse the statutory requirements and have the Court decree the sale of the Sabal Palm property first and then determine the merits of all claims to and liens upon the property. Plaintiff cites no authority in support of its position, nor is the Court aware of any. As plaintiff's request is contrary to the plain language of § 7403(c), and because, as plaintiff admits, there are genuine issues of material fact as to claims of ownership to the property, plaintiff's motion for partial summary judgment must be denied.
The Supreme Court made clear that the Court's discretion is not "unbridled" and set forth four factors to consider in deciding whether to exercise that discretion. Rodgers, 461 U.S. at 709-11. Because the Court concludes that plaintiff's motion must be denied, it is unnecessary to consider these factors in detail.
Accordingly, it is now
ORDERED:
Plaintiff's Motion For Partial Summary Judgment (Doc. #21) is DENIED.
DONE AND ORDERED.