JOHN RAINEY, United States District Judge
Pending before the Court is Interpleader Defendant United States Internal Revenue Service's ("the IRS") Motion for Summary Judgment (Dkt. #23). After considering the parties' arguments and the applicable law, the Court is of the opinion that the pending motion should be granted.
The IRS filed its Motion for Summary Judgment on March 13, 2003. Under Local Rule 7.3 and Federal Rules of Civil Procedure 6(a) (e) the Montgomerys' and Samuel Spritzer Furs, Inc.'s responses were due no later than April 7, 2003. As of the date of this order the Court has received no response from either the Montgomerys or Samuel Spritzer to the IRS's summary judgment motion. As this motion is now ripe, and has been for some time, the Court will proceed to rule on the IRS's summary judgment motion without the benefit of briefing or argument from the Montgomerys or Samuel Spritzer.
FACTUAL BACKGROUND
When considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in favor of the non-movant. Samuel v. Holmes, 138 F.3d 173,176 (5th Cir. 1998); Texas v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995). Therefore, in the procedural posture in which this case now comes before the Court, Plaintiff Dan R. Wise's allegations may be summarized as follows.
William and Ann Montgomery were attorneys and Wise was one of their clients. Wise entrusted the Montgomerys with over $100,000. In 1997, the Montgomerys misappropriated these funds. Wise sued the Montgomerys to recover the money they had stolen from him and on October 5, 2001, Wise obtained a judgment for $891,553.50. On December 28,2001, Wise filed an abstract of the judgment.
On November 30, 2000, the IRS filed a federal tax lien against the Montgomerys for unpaid income taxes for 1996, 1997, and 1998 in the amount of $54,411. The lien was filed in Harris County, Texas where the Montgomerys' home was located. As of March 12, 2003 the Montgomerys' tax liability had grown to $110,073.90.
Interpleader Defendant Samuel Spritzer Furs, Inc. ("Samuel Spritzer") also obtained a judgment against the Montgomerys. However, Samuel Spritzer never abstracted that judgment.
On August 7, 2001, the Montgomerys' home was sold at a foreclosure sale by the law firm of Codilis Stawiarski, P.C. ("Codilis Stawiarski"). There were excess proceeds from this sale in the amount of $56,999.28.
Wise brought the present garnishment action against Kelly Harvey, a former attorney with Codilis Stawiarski, to obtain the excess proceeds from the sale of the Montgomerys' home. However, the IRS claims that its tax lien has priority over Wise's subsequently abstracted judgment. Wise contends that it would be inequitable to give the tax lien priority when the majority of the Montgomerys' delinquent taxes are owed on money that was stolen from Wise.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c); see also Christopher Village, LP v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999). "For any matter on which the non-movant would bear the burden of proof at trial . . . the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial." Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). To prevent summary judgment, the non-movant must "respond by setting forth specific facts" that indicate a genuine issue of material fact. Rushing v. Kansas City S. Ry., 185 F.3d 496, 505 (5th Cir. 1999).
"The court may not undertake to evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party's favor, the court must deny the motion." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). However, the non-movant cannot avoid summary judgment by presenting only "conclusory allegations" or "unsubstantiated assertions," such as the bare allegations of a complaint, but must present sufficient evidence, such as sworn testimony in a deposition or affidavit, to create a genuine issue of material fact as to the claim asserted. Little v. LiquidAir Corp., 37 F.3d 1069,1075 (5th Cir. 1994) (en banc).
When the party moving for summary judgment has the burden of proof at trial, that party must produce evidence sufficient for a court to determine that no reasonable trier of fact could find other than for the moving party. See Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (citations omitted). "If the movant bears the burden of proof on an issue . . . he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original).
ANALYSIS
A properly filed federal tax lien has priority over subsequently perfected judgment liens. 26 U.S.C. § 6323(a). Thus, "[a]s a general rule, competition for priority between tax liens and other encumbrances is determined on the basis of first in time, first in right." Read v. United States, 169 F.3d 243, 252 (5th Cir. 1999) (per curiam). In the present case, there is no dispute that the IRS's tax lien was properly filed before Wise perfected his judgment lien. However, Wise argues that, because the majority of the back taxes owed by the Montgomerys are the result of income they derived from misappropriating Wise's money, it would be inequitable to give the IRS's tax lien the statutory priority to which it would otherwise be entitled.
The IRS can only impose a tax lien on property owned by the delinquent tax payer. However, whether an individual has any right to a particular piece of property is a matter of state law. Aquilino v. United States, 363 U.S. 509 (1960); IRS v. Orr, 180 F.3d 656, 660 (5th Cir. 1999). Thus, some courts have held that, because a thief has no right to the property he has stolen, the IRS cannot impose a tax lien on stolen property because of the thief s delinquent taxes. Atlas, Inc. v. United States, 459 F. Supp. 1000, 1004-05 (N.D. 1978). However, this principle cannot aid Wise in the present case. First, $53,334.64 of the Montgomerys' tax liability is for the year 1996, before the Montgomerys misappropriated Wise's money. Wise can make no claim to these funds. See id. at 1005. Second, unlike the plaintiff in Atlas, Wise has submitted no evidence linking the remainder of the interpled funds to the money the Montgomerys embezzled from him. Wise has submitted what he claims to be a copy of the Montgomerys' 1997 tax return. This return shows only $37,831 in taxable income for 1997, mostly from IRA distributions. The Montgomerys also reported receiving $150,000 from Wise's trust as "deferred compensation." Wise argues that this permits an inference that the Montgomerys' only income in 1997 was from the embezzled funds. However, even assuming the accuracy of the Montgomerys' 1997 tax return, the tax return does not negate the possibility that the Montgomerys used savings or other assets to pay for their house. Wise has not come forward with evidence affirmatively linking the funds used by the Montgomerys to pay for their house to the money they stole from him. Because Samuel Spritzer's judgment lien was never perfected, the IRS's tax lien has priority over the claims of all of the other claimants.
CONCLUSION
For the foregoing reasons, the IRS's Motion for Summary Judgment is GRANTED. The IRS shall submit a proposed final judgment within twenty days of the date of entry of this order.
It is so ORDERED.