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UNITED STATES v. KITSOS

June 4, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN G. KITSOS, et al., Defendants


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 This action has been brought by the United States against John G. Kitsos ("John") and Alice Kitsos ("Alice") -- collectively "Kitsoses" -- and Universal Bible Church of Bolingbrook ("Church") in this tax deficiency action based on the Tax Court adjudicated income tax liabilities of John covering a number of his taxable years. In part the United States seeks a determination that John has retained his interest in the residence at 326 Stafford Way, Bolingbrook, Illinois (the "Property") despite a purported conveyance of that interest to Church in March 1978 -- a determination that would enable the United States to collect upon John's tax liability by levying upon the Property. *fn2"

 On March 13, 1991 the United States moved for summary judgment under Fed.R.Civ.P. ("Rule") 56 against all three defendants, supporting its motion with (1) a memorandum, (2) the materials called for by Rule 56(e) and (3) the statement required by this District Court's General Rule ("GR") 12(m) (which was adopted to implement Rule 56) and asking for this relief:

 
1. a reduction to judgment of John's tax liabilities;
 
2. a finding (a) that the purported transfer to Church of John's interest in the Property was fraudulent or (b) that Church held the property as John's nominee; and
 
3. an order for sale of the Property, with the proceeds to be distributed to those holding an interest in the Property.

 At that time this Court established a schedule for the remaining briefing on the summary judgment motion, but defendants then asked for more time immediately before the scheduled April 15 due date for their responses. *fn3" Although no really substantive reason was offered in support of that motion, in an April 19 opinion this Court -- reluctant to let the matter go effectively by default -- granted another 28 days (to May 13) for the required responses. *fn4" Earlier (on March 28) it had mailed to defendants the type of letter that it customarily sends to all pro se litigants faced with a Rule 56 motion (see Ex. 1).

 
1. another "Motion To Reset and Further Extend Deadline Filing Dates," asking (again!) for 60 more days "in which to complete and file the additional material which is essential in their defense";
 
2. Church's "Motion to Recind and Set Aside Prior Court Orders and Permit a Trustee to Appear Pro Se for Defendant Church; Deny Plaintiffs Motion of Default and Summary Judgement";
 
3. John's affidavit as "Trustee of Church in Opposition of Government Motion for Summary Judgement";
 
4. John's individual affidavit "in Opposition to Summary Judgement"; and
 
5. Alice's affidavit "in Opposition to Government Summary Judgement Motion."

 This Court's May 15 opinion, for the reasons set out at some length there, denied defendants' motion for extension referred to in paragraph 1 and Church's motion referred to in paragraph 2. At this point nothing more has been received from defendants and the United States has fired its final shot--by filing the "Response of the United States in Support of Its Motion for Summary Judgment"--so that the issues are ripe for determination.

 Facts5

 John's tax liabilities have been established in the amounts respectively set out in the attached group Ex. 2 (United States Exs. D and E) for the calendar years 1971 through 1978. Because those Exhibit figures obviously cannot reflect the full amount of prejudgment interest to the date of the judgment that should be entered here, the entry of that judgment must await further input. Accordingly the United States is being ordered to submit to this Court's chambers and to defendants on or before June 17 its calculation of the amount of a judgment to be entered against John on June 28 (including in its submission an explanation of its calculation of prejudgment interest), together with a proposed form of order for judgment. This Court will await any response to be filed in its chambers by John (or by either or both of the other defendants) on or before June 25 and will then proceed to enter judgment for the appropriate amount on the June 28 date.

 To return to the dates relevant to this action in substantive terms, on March 2, 1978 John and Alice joined in executing and recording a deed conveying the Property to Church -- a newly-formed corporation that John had organized under the Illinois not-for-profit statutes regarding religious corporations (what had been Sections 46a through 46h of the 1913 amendments to the legislation regarding such corporations, codified as Ill. Rev. Stat. ch. 32, paras. 176-183). Until recently defendants have vacillated between representing Church to be an unincorporated association whose only members were John and Alice *fn6" and contending that there were also other members -- as yet wholly unidentified -- of the same unincorporated association. *fn7" Most recently, however, defendants have "discovered" that their frequent earlier representations were false and that Church is an Illinois not-for-profit corporation formed in 1978, with John as its Trustee. *fn8" Contemporaneously with the making of that revised representation, Church then asked this Court to (Motion To Recind 3):

 
1. Set aside prior Court Order and permit a Trustee to appear for the Defendant Universal Bible Church;
 
2. Deny the Plaintiffs Motion of Default;
 
3. Deny Plaintiffs Motion for Summary Judgement against the Church;
 
4. Allow John Kitsos to be impleaded as Trustee of the Church and act herein for the Church.
 
(The Church was denied a public defender and is unable to pay a private attorney at this time) *fn9"

 Because this Court had told defendants often enough that their notions in that respect were and are simply untenable, the May 15 opinion denied Church's motion.

 In all events, the most relevant fact for current purposes is that the transfer to Church was without adequate consideration in the sense that is required by the legal doctrines discussed later in this opinion. No transfer tax was paid, based on this representation stamped on the deed and signed by John:

 
Exempt Under Provisions of Paragraph E, Section 4, Real Estate Transfer Tax Act.

 That reference to "Paragraph E," handwritten by John, is to Ill. Rev. Stat. ch. 120, para. 1004(e), which reads:

 
Deeds where the actual consideration is less than $ 100. *fn10"

 As for the post-conveyance conduct of defendants, U.S. 12(m) paras. 16-26 and n. 1 (attached to this opinion as its Ex. 3) tell the story as to the lack of significance to be attached to Church's purported "ownership" of the Property. Defendants respond with no facts -- they merely offer generalized denials that do not create any real issue of fact, let alone any material factual issue. All that they have offered that could be characterized as even partly responsive to the United States' filing is a statement in their memorandum that the designation of John and Alice as the parties insured on the hazard and liability insurance covering the Property -- a designation made with no mention whatever of Church either as a party insured or as having any interest in the Property -- is in error and will be corrected. That assertion would not make a difference even if it were to be credited, and this Court is not required to do that. *fn11"

 John's Tax Liability

 John contested his tax liability for the years at issue before the Tax Court. He lost. On August 25, 1987 Tax Court Judge Edna Parker issued a decision (part of Ex. 2 to this opinion) pursuant to that Court's January 22, 1987 opinion, determining the deficiencies in tax and additions to the tax that were later set out in the Form 4340 Certificates of Assessment (the balance of Ex. 2 to this opinion).

 Although John purports to challenge the existence of his tax liabilities here, it has been firmly established for nearly a half century that claim preclusion -- res judicata -- forecloses any such attack ( Commissioner v. Sunnen, 333 U.S. 591, 598, 92 L. Ed. 898, 68 S. Ct. 715 (1948); United States v. International Building Co., 345 U.S. 502, 97 L. Ed. 1182, 73 S. Ct. 807 (1953)). Nor has any real question been presented here as to the validity of the assessments (see United States v. Chila, 871 F.2d 1015, 1017-18 (11th Cir. 1989); cf. United States v. Warner, 855 F.2d 372, 374 (7th Cir. 1988)). As stated earlier, all that is required is to bring the amounts up to date to reflect the full prejudgment interest.

 As for the relationship between John's established tax liabilities and the conveyance to Church -- the issue whether that conveyance may be disregarded because it was fraudulent as to the United States -- the relevant question is whether the United States was a "creditor" of John's at the time of the 1978 conveyance. On that score the opinion of this Court's former colleague Judge Susan Getzendanner, issued in a remarkably similar case (a purported conveyance of a taxpayer's residence to a "church" without the receipt of any current consideration), *fn12" could have been written expressly to fit this case ( Indiana National Bank v. Gamble, 612 F. Supp. 1272, 1276 (N.D. Ill. 1984) (citations omitted)):

 
Although those [prior year's income] taxes had not yet been assessed, the law is well settled, for fraudulent conveyance purposes, tax liabilities are due and owing on the date the returns are required to be filed and not the date of assessment.

 Fraud in the Conveyance of the Property

 As just indicated, the United States' status as "creditor" of a taxpayer before that taxpayer's execution and delivery of a challenged conveyance is one step along the road to subjecting the conveyed property to a later-established tax lien. For the United States to establish and enforce that lien for John's taxes against the Property -- an asset with title reposed in someone else--it must establish the existence of John's current legal interest in the Property (see 26 U.S.C. § 6321) under state law, which is consistently recognized as the source and definer of such property interests ( Aquilino v. United States, 363 U.S. 509, 513-14, 80 S. Ct. 1277, 4 L. Ed. 2d 1365 (1960)).

 Codifying the classic fraudulent-intent requirement in the Illinois law of fraudulent conveyances, former Ill. Rev. Stat. ch. 59, para. 4 provided: *fn13"

 
Every . . . conveyance . . . or transfer of . . . any estate, real or personal . . . made with the intent to disturb, delay, hinder or defraud creditors or other persons, . . . shall be void as against such creditors, purchasers and other persons.

 But that is only one of two roads potentially leading to the same destination -- just six months ago the Illinois Supreme Court again recapitulated the alternative doctrine in that area in a statement that, stripped of its numerous citations, is succinct indeed ( Gendron v. Chicago & North Western Transportation Co., 139 Ill. 2d 422, 437-38, 564 N.E.2d 1207, 1214-15, 151 Ill. Dec. 545 (1990) (citations omitted)):

 
Illinois recognizes two categories of fraudulent conveyances: those which are fraudulent in fact and those which are fraudulent in law. In fraud-in-fact cases a specific intent to "disturb, delay, hinder or defraud" must be proved. ("There must be evidence to show a fraudulent intent before a conveyance made upon a valuable consideration may be held fraudulent"). In fraud-in-law cases, on the other hand, a conveyance may be presumed fraudulent based on certain circumstances surrounding the conveyance. In order to establish that a conveyance is fraudulent in law, three elements must be present: (1) there must be a transfer made for no or inadequate consideration; (2) there must be existing or contemplated indebtedness against the transferor; and (3) it must appear that the transferor did not retain sufficient property to pay his indebtedness.

 No even arguable dispute exists as to the presence of each of those factors here. Although it may well be unnecessary to belabor the obvious in light of what has already been said as to the facts of the case, it requires only a brief restatement to correlate those facts with the relevant factors:

 
1. No meaningful consideration flowed from Church to John or to Kitsoses for the conveyance. *fn14"
 
3. John himself has acknowledged that he did not retain the necessary assets to pay that tax liability or any other indebtedness.

 That is enough to invalidate the conveyance to Church and to render the Property subject to the United States' lien for taxes. Even though it seems plain that further analysis would also show that the identical result would be mandated on the alternative fraud-in-fact theory, that approach would require the inferential determination of John's (or Kitsoses') "intent to disturb, delay, hinder or defraud creditors or other persons" -- and there is no need to prolong the discussion to make that determination, only to get to the same destination twice over.

 Church's Alter Ego Status

 Still another route leading to the same result would be to arrive at a determination that Church is no more than a nominee -- an alter ego -- of John or Kitsoses. Most frequently that issue of whether separate corporate existence may be disregarded is encountered in the converse situation, where shareholders are sought to be held personally liable for obligations that have nominally been incurred by their corporation -- the "piercing the corporate veil" notion. Thus McCracken v. Olson Companies, Inc., 149 Ill. App. 3d 104, 109-10, 500 N.E.2d 487, 491, 102 Ill. Dec. 594 (1st Dist. 1986) (citations omitted) has explained:

 
Where a corporation is found to be merely the alter-ego or business conduit of a governing or dominant personality, however, the corporate entity will be disregarded and the veil of limited liability pierced. For the corporate veil to be pierced: (1) there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and (2) circumstances must be such that an adherence to the fiction of a separate corporate existence would promote injustice or inequitable consequences.
 
In determining whether to disregard a corporate entity, the court will not rest its decision on a single factor but will rather look to a number of variables such as inadequate capitalization, failure to observe corporate formalities, the commingling of funds, and the absence of corporate records. Where such variables are coupled with some element of injustice or fundamental unfairness, the corporation will be considered as an aggregate of persons both in equity and at law and its officers, directors and shareholders will be held individually liable for the corporation's debts and obligations.

 Even though the focus of that discussion was on the attribution of corporate debts to the shareholders despite the normal rule of limited liability, what appears most relevant to the different question posed here is the abundantly clear proposition that the doctrine is an equitable one--a doctrine that emphasizes the avoidance of "injustice or inequitable consequences" or "fundamental unfairness." In that light it would surely seem that identical considerations ought to control where (as here) the issue is whether the corporation is no more than a nominee whose "assets" should therefore be subject to the obligations of the party that transferred those assets to it.

 This Court's independent research has uncovered no Illinois cases comparable to the current one, nor have the United States' memoranda cited any. But precedent elsewhere has uniformly cut through the kind of underbrush that is sought to be strewn about by Kitsoses, and has uniformly subjected assets held by comparable nominees to the federal income tax obligations of the taxpayers who have divested themselves of those assets: see such cases as Loving Saviour Church v. United States, 556 F. Supp. 688, 691-93 (D. S.D. 1983) (another "church" case with parallel facts, decided under South Dakota "alter ego" principles identical to those applied in Illinois); Lewis G. Allen Family Trust v. United States, 558 F. Supp. 152, 157-58 (D. Kan. 1982) (dealing under Kansas law with another favorite tax dodge, the creation and funding of a purported trust via the conveyance of the taxpayer's residence and other assets).

 All the facts of this case -- John's continued exercise of dominion over the Stafford Way residence after the purported transfer, the continued identification of the Property by the Kitsos' rather than the Church's name (both the mailbox and, as previously stated, the hazard insurance reflect that) and the fancy footwork that has been attempted to be exhibited by John and Alice as to just what kind of animal Church is, who its members are and so on -- would plainly call for a disregard of Church's independent existence. Like the fraud-in-law concept, those facts cause Property to be subject to John's tax obligations to the United States.

 Conclusion

 There is no genuine issue of material fact in any respect relevant to this litigation, and the United States is entitled to a judgment as a matter of law. That means these things:

 
1. Judgment will be ordered to be entered in favor of the United States and against John in the full amount of his tax liability for the years 1971 through 1978. For that purpose this Court will await the United States' submission to this Court's chambers on or before June 17 of its up-to-date calculations based on an anticipated judgment date of June 28, 1991, to be considered in conjunction with any responsive submission filed by one or more defendants in this Court's chambers on or before June 25.
 
2. It is hereby declared that John's purported transfer of his interest in the 326 Stafford Way, Bolingbrook, Illinois Property was fraudulent in law, and also that the Universal Bible Church of Bolingbrook holds title to the Property not in its own right but rather as John's nominee.
 
3. This Court authorizes the sale of the Property to be conducted promptly after the entry of judgment against John, with the proceeds of sale to be distributed to the United States and others holding any interest in the Property, as their respective interests may appear. For that purpose this Court invites filings by the United States, Olympic Savings and Loan Association and Kitsoses on or before June 25, 1991, suggesting the procedures to be followed for that purpose.

 APPENDIX

 Courts frequently encounter, in the summary judgment context, efforts by litigants to forestall the entry of adverse judgments by interposing questionable or even obviously bogus factual issues. Because the very nature of summary judgment is such as to cut a case short before a full-blown trial, the conventional (and proper) wisdom from no less an authority than the United States Supreme Court is that the trial judge should avoid choosing between conflicting versions of the material facts ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)):

 
Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.

 But a court is not required to stand helpless just because a litigant tenders something that purports to create a disputed factual issue. Anderson, id. at 249-50 went on to say immediately following the language quoted above in the text:

 
As Adickes [ v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)] and [ First National Bank of Arizona v.] Cities Service [ Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)] indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Cities Service, supra, at 288-289. If the evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82 [18 L. Ed. 2d 577, 87 S. Ct. 1425] (1967) (per curiam), or is not significantly probative, Cities Service, supra, at 290, summary judgment may be granted.

 Just before Anderson our Court of Appeals had identified circumstances in which a court contemplating a summary judgment motion could block the effort of the opposing party to generate a false conflict of material fact ( Stewart v. RCA Corp., 790 F.2d 624, 628 (7th Cir. 1986) (citation omitted)):

 
A court might be able to find a witness incredible as a matter of law if he had told a different story under oath before recognizing the legal significance of the truth, or if the current story were irrefutably contradicted by documentary evidence.

 And although this Court has not found a post-Anderson opinion from our own Court of Appeals, the clear thrust of Anderson's teaching is accurately reflected in such cases as Johnson v. Washington Metropolitan Area Transit Authority, 280 U.S. App. D.C. 53, 883 F.2d 125, 128 (D.C. Cir. 1989) (citations to illustrative decisions omitted):

 
Judges may, under certain circumstances, lawfully put aside testimony that is so undermined as to be incredible. The removal of a factual question from the jury is most likely when a plaintiff's claim is supported solely by the plaintiff's own self-serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury.

 This Court, though of course it recognizes those principles, has tended to go slowly in applying them. Here John has furnished more than ample justification for flatly disregarding the representations that he has made, even in affidavit form. But as the text reflects, this Court has not gone the last mile of treating defendants' submissions as "inherently incredible" and thus to be ignored entirely. Instead this opinion has limited itself to disregarding assertions via affidavit that cannot stand in the face of prior sworn testimony (see, e.g., Bank Leumi, 928 F.2d at 237 and cases cited there). And it has also not credited assertions that have not satisfied the admissible-in-evidence standard established by Rule 56(e)--such as, for example, statements tendered only as part of a motion (as to the need to comply with the Rule 56(e) requirement generally, see such cases as Friedel v. City of Madison, 832 F.2d 965, 969-70 (7th Cir. 1987); and as to the insufficiency of statements in a motion or memorandum to meet even the pleading requirements of Rule 12(b)(6)--from which the obvious insufficiency of such statements to meet the proof requirements of Rule 56(e) would follow a fortiori--see such cases as Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)).

 Exhibit 1

 UNITED STATES DISTRICT COURT

 NORTHERN DISTRICT OF ILLINOIS

 CHAMBERS OF MILTON I. SHADUR JUDGE

 CHICAGO, ILLINOIS 60604

 March 28, 1991

 John G. Kitsos

 326 Stafford Way

 Bolingbrook, IL 60439

 Alice Kitsos

 326 Stafford Way

 Bolingbrook, IL 60439

 Universal Bible Church of Bolingbrook

 326 Stafford Way

 Bolingbrook, IL 60439

 Re: United States of America v. John Kitsos, et ...


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