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United States of America v. Robert K. Zabka

February 25, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERT K. ZABKA, DEBRA ZABKA, BROOKSTONE HOSPITALITY LIMITED PARTNERSHIP, ANTIQUES LIMITED PARTNERSHIP, ZFP LIMITED PARTNERSHIP, PRARIE STATE BANK & TRUST, N.A., FIRST MID-ILLINOIS BANK & TRUST, N.A., BANK OF AMERICA, N.A., AND ELEOS, LLC, DEFENDANTS,



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

E-FILED

Friday, 25 February, 2011 03:52:14 PM

Clerk, U.S. District Court, ILCD

ORDER

Now before the Court is Plaintiff United States of America's Motion for Partial Summary Judgment, Motion for Telephonic Oral Argument, and Defendants' Motion to Compel. For the reasons set forth below, the Motion for Summary Judgment [#19] is GRANTED. The Motion for Telephonic Oral Argument [#33] is DENIED, and the Motion to Compel [#28] is DENIED.

LOCAL RULE 7.1(D)(2)(b)

Local Rule 7.1(D)(2)(b) of the Central District of Illinois provides the rule for a non-movant's response to Undisputed Material Facts. Local Rule 7.1(D)(2)(b)(2) for provides that in responding to allegedly undisputed material facts, the party filing the response shall:

List by number each fact from Section B of the motion for summary judgment which is conceded to be material but is claimed to be disputed. Each such claim of disputed fact must be supported by evidentiary documentation referenced by specific page. Include as exhibits all cited documentary evidence not already submitted by the movant.

Furthermore, Local Rule 7.1(D)(2)(b)(6) states that "A failure to respond to any numbered fact will be deemed an admission of the fact." The Seventh Circuit has "repeatedly.sustained the entry of summary judgment where the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby concedes the movant's version of the facts." Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994).

Despite the fact that Defendants are represented by counsel, who should be well-aware of the requirements of the Local Rules of any district in which they practice, including Local Rule 7.1(D), Defendants have failed to file a proper response to Plaintiff's statement of undisputed facts. In fact, the totality of their response with respect to undisputed fact 2 is as follows:

The Zabkas dispute Plaitniff's allegation that an assessment was made against the Zabkas for years 1996 and 1997, following the U.S. Tax Court's Decision. Plaintiff produces no evidence of assessment for 1996 and 1997. Moreover, Revenue Officer Sam Randazzo's declaration is insufficient to establish assessment. (Defendants' Response at 2.) This response is insufficient and fails to comply with Local Rule 7.1(D)(2)(b)(2) in that if fails to indicate how it renders the identified statement as false or otherwise in dispute; it is purely argumentative. Moreover, the response contains no references by page to pertinent evidentiary documentation establishing the issue of fact. Accordingly, the Court is justified in treating such statements as admitted to the extent that Defendants' response is non-responsive to the identified statements of undisputed fact.

BACKGROUND

On June 28, 2000, Robert K. Zabka and Debra Zabka ("Zabkas" or "Defendants") filed a petition with the U.S. Tax Court seeking a redetermination of their federal income tax liability for the years 1996 and 1997. On April 21, 2004 the United States Tax Court determined that there were deficiencies in income tax, additions to tax, and penalties due from the Zabkas totaling $1,204,825.59 for tax years 1996 and 1997. The Complaint alleges that notices of the assessments and demands for payment were then sent to the Zabkas on or about the dates of the assessments. The Zabkas have not paid the deficiencies, and, as of April 16, 2010, the Zabkas' outstanding balance is $1,769,458.26.

On April 22, 2009, the Zabkas submitted a Freedom of Information Act ("FOIA") Request to Disclosure Officer Stephanie Brown ("Brown") for the tax years 1996 thru 1999, inclusive. The Zabkas requested their "entire file held by IRS Technical Services Advisory Group, Stop 5012 CHI Group Manager, David Jacoby and Revenue Officer Sam Randazzo." The Defendants then received over 1,300 pages from Brown. According to Defendants, there was no Form 23C "Summary Record of Assessments" or Form 4340 "Certificate of Assessment" ...


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