United States District Court, D. Colorado
JANET L. WALCOTT, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER ON MOTION FOR SUMMARY
S. Krieger Chief Judge
MATTER comes before the Court on the Defendant's
Motion for Summary Judgment (# 67), the
Plaintiff's response (# 71), and the
Defendant's reply (# 73). For the
reasons that follow, the motion is granted.
Court exercises jurisdiction pursuant to 28 U.S.C. §
Court recounts the undisputed facts and the disputed facts in
the light most favorable to Ms. Walcott, the nonmoving party,
supplementing them as necessary in its analysis. See
Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213
(10th Cir. 2002).
Walcott did not voluntarily pay her income taxes for the tax
years 2002 to 2011. As a result, she accrued both tax
liabilities and penalties. In addition, the IRS assessed four
civil penalties pursuant to 26 U.S.C. § 6702 for
repeated filing frivolous income tax returns.
tax years 2002 to 2004, IRS made assessments based on returns
filed by Ms. Walcott. For years 2005 to 2011, the IRS
examined her returns and found that they understated her
income and proposed to assess her additional tax and
penalties. Ms. Walcott claims that the IRS did not comply
with Internal Revenue Code because it did not send her a
Notice of Deficiency before making its assessment for these
and again in 2014, the IRS levied on payments made to Ms.
Walcott from her retirement account with the Colorado Public
Employees' Retirement Association (PERA). Each time, the
levy directed that 100% of the payment that Ms. Walcott was
entitled to receive from PERA be paid against her tax
obligations. As a result of the 2012 Levy, the IRS fully
collected Ms. Walcott's taxes for 2002, 2003, 2004 and
2005. The levy improperly attached Ms. Walcott's payments
for her 2006 taxes, but the IRS corrected the error and
released the levy. The 2014 Levy sought to collect sums owed
for tax years 2006 and 2009 to 2011. It referred only to
initial assessments but inadvertently collected funds based
on both initial and revised assessments. It was released
after the duplication was noted. As a result, there has been
not collection of sums owed for 2011.
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof, and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248 (1986); Kaiser-Francis Oil Co. v.Producer's Gas
Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is “genuine” and summary judgment is
precluded if the evidence presented in support of and
opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus. Inc. v. Arvin
Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
lawsuit, Ms. Walcott has only one claim. She claims that
the funds that the IRS seized by levy were overpayments for
which she is entitled to a refund because prior to levy the
IRS failed to provide her with Notices of Deficiency as
required by 26 U.S.C. § 6213. On this claim, Ms. Walcott
bears the burden of establishing that she was entitled to a
Notice of Deficiency. If she establishes such entitlement,
the IRS must then establish that the Notice of Deficiency
existed and was mailed, creating a presumption. Koerner
v. C.I.R., T.C. Memo. 1997-144, 73 T.C.M. (CCH) ...