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CENTRAL STATES SOUTHEAST & SOUTHWEST AREAS PENSION

October 18, 1994

CENTRAL STATES SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, a pension trust, et al., Plaintiffs,
v.
ROBERT MILLER and IDA MILLER, his wife, jointly and severally, Defendants.



The opinion of the court was delivered by: JOAN HUMPHREY LEFKOW

 Joan H. Lefkow, Executive Magistrate Judge:

 Central States, Southeast and Southwest Areas Pension Fund (the "Fund") is a multiemployer pension plan within the meaning of sections 37(7) and 4001(a)(3) of the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. and 1301(a)(3), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. §§ 1381 et seq. The Fund and its trustees have brought this action to enforce withdrawal liability against individuals, Robert Miller and Ida Miller, his wife (the "Millers"). Under the MPPAA, a multiemployer pension plan governed by ERISA is required to assess withdrawal liability against employers who withdraw from the plan. Here, the Fund alleges that because the Millers owned and leased certain property at the time that Miller Brothers Trucking Co., Inc. ("Miller Brothers") withdrew from the plan, they are responsible for Miller Brothers' withdrawal liability. Plaintiffs seek $ 231,305.98 in withdrawal liability plus interest, costs and attorneys' fees, less any amount already received on account of the withdrawal.

 SUMMARY JUDGMENT PROCEDURE

 Summary judgment is appropriate 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 judgment as a matter of law. Fed. R. Civ. P. 56(c); Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1388 (7th Cir. 1993). Because plaintiffs and defendants have filed cross motions for summary judgment, the court must rule on each party's motion individually, determining in each case whether judgment may be entered in accordance with the standard set forth in Rule 56. Wausau Insurance Co. v. Valspar Corp., 594 F. Supp. 269, 270 (N.D.Ill. 1984). Treating plaintiffs' motion initially, the court will state the facts in a light most favorable to the defendants.

 FACTS

 Miller Brothers was a Wisconsin corporation, owned and operated by the Millers. As of December, 1986, 100 percent of the outstanding stock of Miller Brothers was owned by the Millers. Prior to December, 1986, Miller Brothers made contributions to the Fund pursuant to a collective bargaining agreement with one or more locals of the International Brotherhood of Teamsters. In December, 1986, Miller Brothers was dissolved and ceased making contributions to the Fund.

 The Fund determined that Miller Brothers effected a "complete withdrawal" from the pension fund as defined in section 4203 of ERISA, 29 U.S.C. § 1383. On June 30, 1987, in accordance with sections 4202(2) and 4219(b)(1) of ERISA, 29 U.S.C. §§ 1382(2) and 1399(b)(1), the Fund sent Miller Brothers a letter of notice and demand for withdrawal liability in the principal amount of $ 231,305.98. The letter advised Miller Brothers of its right to request that the Fund review Miller Brothers' withdrawal liability under section 4219(b)(2)(A) of ERISA, 29 U.S.C. § 1399(b)(2)(A), and to initiate arbitration under section 4221 of ERISA, 29 U.S.C. § 1401. Additionally, the letter notified Miller Brothers that the request for withdrawal liability "applies equally to all members of any controlled group of trades or businesses . . . of which [Miller Brothers] is a member." See 29 U.S.C. § 1301(b)(1). Answer at P 18.

 On August 28, 1987, Miller Brothers notified the Fund that it had no assets to satisfy their withdrawal liability and defaulted on the requested payments. Miller Brothers did not request arbitration of the withdrawal liability assessment. Pursuant to section 4221(b)(1) of ERISA, 29 U.S.C. § 1401(b)(1), the Fund subsequently brought an action in this court against Miller Brothers to collect the withdrawal liability. *fn1" The action was settled and, in exchange for the payment of $ 676.80, a release of all claims was given to Miller Brothers.

 In July 1986, the Millers bought a house, as joint tenants, located at 3603 West Maple Street, Milwaukee, Wisconsin, for $ 39,019. The money used by the Millers to pay the down payment on the house originated in a joint bank account maintained by the Millers. The Millers bought the house in order to sell it to their daughter and her husband. In August 1986, Robert Miller contracted with Imperial Garages General Contractors to build a new garage at the house. In December, 1986, the Millers executed a mortgage and pledged the house to Republic Savings & Loan in return for a loan of $ 34,000.

 Robert Miller handled all of the matters related to the rental of the house. Although Ida Miller admitted that she and her husband "rented" the house, she herself did not devote any time or effort to renting the house to Morrison and Schutz. She did not keep any records related to the house or perform any bookkeeping related to the house. She also did not keep track of or know how the expenses related to the house were paid.

 Morrison and Schutz had no relationship with Miller Brothers. The rental of the house was not related in any way to the business of Miller Brothers, nor was the house ever used to benefit Miller Brothers. No money from any account of Miller Brothers was used to purchase or maintain the house. The Millers did not buy, sell or rent any property to Miller Brothers, nor did they have any type of lease with Miller Brothers.

 Robert Miller rented the house to Morrison and Schutz on a continual basis through June of 1988. When it became apparent that their daughter's divorce was inevitable, the Millers decided to sell the house. In so doing, they both executed a listing contract with a real estate broker. On August 24, 1988, the house was sold for $ 50,500. During the time that they owned the house, the Millers never intended to acquire, nor did they acquire, another residential property.

 On the federal income tax returns that the Millers filed for the tax years 1986 through 1988, the Millers deducted all expenses related to the rental of the house under Internal Revenue Code § 212(2) (ordinary and necessary expenses paid for the management, conservation, or maintenance of property held for the production of income). On the federal income tax return that the Millers filed for 1988, the Millers reported the gain on the sale of the ...


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