United States District Court, N.D. Illinois, Western Division
G. Reinhard Judge
reasons stated below, plaintiff's motion  for summary
judgment is granted. See separate judgment.
United States of America, brings this action against
defendants, Ronald Hamilton, Mary Hamilton, and CitiMortgage,
Inc. (“CitiMortgage”) to collect unpaid federal
income tax liabilities, including statutory additions and
costs and to enforce federal tax liens on real property owned
by the Hamiltons. The court has subject matter jurisdiction
under 28 U.S.C. § 1340. Plaintiff moves  for summary
judgment. Plaintiff and CitiMortgage have stipulated  as
to the priority of their respective liens in the event
plaintiff prevails in this matter and proceeds to judicial
sale of certain real property owned by the Hamiltons.
Hamiltons have not complied with the requirements of
LR56.1(b)(3) which requires parties opposing summary judgment
to file a response to the statement of material facts filed
by the moving party pursuant to LR56.1(a)(3). Therefore, the
facts presented in plaintiff's LR56.1(a)(3) statement are
deemed admitted pursuant to LR56.1(c).
of the Secretary of the Treasury made assessments of federal
income taxes, penalties and interest against Ronald Hamilton
for tax years 2003, 2004, 2005, 2006, 2008, 2009, 2010. The
total balance due from Ronald Hamilton as of November 10,
2016 for taxes, penalties, and interest assessed for these
tax years is $65, 908.06. Each of these assessments was made
pursuant to a statutory notice of deficiency (26 U.S.C.
§§ 6211-6213) based upon no valid return having
been filed by Ronald Hamilton, coupled with returns prepared
by the IRS under Internal Revenue Code § 6020(b).
Delegates of the Secretary of the Treasury properly gave
notice of the above tax assessments and made demand for
payment of the assessed liabilities upon Ronald Hamilton.
Despite such notice and demand, Ronald Hamilton has
neglected, failed, or refused to pay the assessed liabilities
in full. After application of all abatements, payments, and
credits, Ronald Hamilton remains indebted to the United
States for income taxes, penalties, and interest for the
aforementioned tax years in the total amount of $65, 908.06
as of November 10, 2016, plus such additional amounts as may
accrue from and after that date as provided by law. Ronald
Hamilton, along with his wife, Mary Hamilton, own certain
real property commonly known as 454 N. Edward St., Cortland,
Illinois. CitiMortgage claims an interest in this real
property by virtue of a mortgage dated February 24, 2004 and
recorded March 3, 2004.The Hamiltons do not dispute any of
these facts and, thus, they are deemed admitted.
facts set forth above establish Ronald Hamilton's
liability for the amount claimed. Federal tax liens arise
upon assessment and attach to all property of the delinquent
taxpayer. 26 U.S.C. §§ 6321 & 6322. Thus,
federal tax liens attached to Ronald Hamilton's interest
in the Cortland real property upon assessment of the taxes
set forth above. Plaintiff is entitled to enforce these tax
liens by judicial sale of the real property. 26 U.S.C. §
only argument raised by the Hamiltons in their opposition to
summary judgment is that plaintiff's motion is premature
because plaintiff has admitted it will be reallocating
payments that were allocated to Ronald Hamilton's 2001
and 2002 assessed liabilities after the expiration of the
statute of limitations for collection of amounts due for
those years. They argue that the amount actually due is
therefore unknown at this time and may be zero.
judgment is often called “the ‘put up or shut
up' moment in litigation, by which we mean that the
non-moving party is required to marshal and present the court
with the evidence she contends will prove her case. And, by
evidence, we mean evidence on which a reasonable jury could
rely.” Goodman v. Nat'l Security Agency,
Inc., 621 F.3d 651, 654 (7th Cir. 2010)
(citations omitted). The Hamiltons have not presented any
such evidence. They have not submitted evidence of payments
made. While they state in their brief that plaintiff
“has been garnishing Ronald Hamilton's social
security and retirement pension for years and in all
likelihood allocated those paid sums primarily to the very
tax years that are statutorily barred from collection,
” they do not present any evidence as to the amounts
that were garnished or the period of time over which the
garnishments occurred, or the allocation of the amounts
recovered via the garnishments.
the declaration of Breena Effertz, submitted by plaintiff,
states the “IRS anticipates reallocating payments that
were applied to Ronald Hamilton's 2001 and 2002 assessed
liabilities after expiration of the collection statute of
limitations date” to the liabilities set forth above,
the Hamiltons have not submitted any evidence or authority
that the plaintiff is compelled to reallocate any of the
payments (assuming they were made) to the amounts sought in
this action. When a payment on delinquent taxes is not
voluntarily made by the taxpayer, the IRS may allocate the
payment as it sees fit. Muntwyler v. U.S., 703 F.2d
1030, 1032 (7th Cir. 1983). The Hamiltons say in
their brief that the payments were made via garnishment of
Ronald Hamilton's social security and pension benefits.
Thus, any such payment would have been involuntary.
Id. The Hamiltons have not offered any
“evidence on which a reasonable jury could rely”
to find in their favor. Goodman, 621 F.3d at 654.
foregoing reasons, plaintiff s motion  for summary
judgment is granted. See separate judgment.
 Plaintiff incorporated its
LR56.1(a)(3) statement of facts into the document  titled
“Plaintiff United States of America's Memorandum in
Support of Its Motion for Summary Judgment.” While the
preferred practice is to file the LR56.1(a)(3) statement as a
separate document, the statement of facts as presented
contained citations to the exhibits filed in support of
summary judgment and was obvious enough that the ...