USA v. Templeman

USA v. Templeman                        CV-98-697-B   03/21/00   P

                   UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE


United States of America

     v.                            Civil N o . 98-697-B
                                   Opinion N o . 

Andrew D . Tempelman, et al.




                       MEMORANDUM AND ORDER


     The United States brings this action pursuant to 

 and 7403 to reduce to judgment federal tax assessments

against Andrew D. Tempelman and Priscilla Tempelman and to

foreclose federal tax liens upon certain real property presently

or formerly owned by the Tempelmans.1   The assessments and liens

in question arise from the Tempelmans’ unpaid federal income tax

liabilities for tax years 1983, 1984, 1985, and 1990. 2   Also

named as defendants are the Fellowship of Perfect Liberty and




     1
        This court has subject matter jurisdiction over the
present action under 

, 1345 and 

.
     2
        The government originally also brought a claim against
the Tempelmans based on an assessment for tax year 1987. I
previously dismissed that claim by agreement of the parties.
Citizens Bank of New Hampshire, both of which purportedly have an

interest in the property encumbered by the liens. Before this

court is the government’s motion for summary judgment (Doc. #22)

and the Tempelmans’ objection (Doc. # 2 4 ) .   For the reasons that

follow, I grant the government’s motion.



                           I.   BACKGROUND

A.   The Tempelmans and the Maple Street Property

     Andrew and Priscilla Tempelman are husband and wife. On or

about December 2 8 , 1976, the Tempelmans acquired as joint tenants

with rights of survivorship the property that is the subject of

this action, which is located at 24 Maple Street in Milford, New

Hampshire.3   Since 1977, the Tempelmans have operated the Maple


     3
        I refer to the property at issue as “the Maple Street
property.” In a paragraph of the government’s complaint not
denied by the Tempelmans in their answer, this property is
described a s :

     A certain parcel of land with the buildings thereon situated
     in the Town of Milford, County of Hillsborough, State of New
     Hampshire, bounded and described as follows:

     On the north by Maple Street;
     On the east by North River Road;
     On the south by Elm Street;
     On the west by Madison Street,

     Containing 7 acres, more or less.

     Being the same premises conveyed to Andrew D. Tempelman and
     Priscilla Tempelman by deed of Hillsborough Mills, dated
Street property as a restaurant and inn known as “The Ram in the

Thicket.”

B.   Deficiencies and Assessments for Tax Years 1983,
     1984, and 1985

     On June 2 9 , 1990, the Internal Revenue Service (“IRS”) sent

the Tempelmans a notice of deficiency pursuant to 

, asserting that the couple owed over $145,000 in taxes,

penalties, and interest for tax years 1983, 1984, and 1985.       The

Tempelmans filed a timely petition under 

(a),

seeking a redetermination of the deficiencies by the United

States Tax Court.   On October 4 , 1991, the Tempelmans entered

into an agreement with the Commissioner of the IRS, in which they

stipulated that their tax deficiencies with additions for 1983,

1984, and 1985 amounted to approximately $44,635 plus interest.

The Tax Court adopted the parties’ agreement in a decision

entered on November 2 7 , 1991.

     On December 2 3 , 1991, a delegate of the Secretary of the

Treasury made assessments against the Tempelmans for 1983, 1984,

and 1985 in accordance with the Tax Court’s decision.4      A


     December 2 8 , 1976 and recorded in Hillsborough County
     Registry of Deeds, Book 2503 at Page 382.

Compl. (Doc. #1) ¶ 1 1 ; see also Answer (Doc. #8) at 1 .
     4
        The IRS is ordinarily prohibited from making such an
assessment until the Tax Court’s decision becomes “final.” See
delegate of the Secretary of the Treasury issued notices of these

assessments to the Tempelmans and made demand for payment.     The

Tempelmans have failed to make full payment. Their outstanding

liability for tax years 1983, 1984, and 1985 is $158,319.15 plus

statutory interest from September 3 , 1999.

C.   Deficiency and Assessment for Tax Year 1990

     On April 2 6 , 1993 and September 2 6 , 1994, a delegate of the

Secretary of the Treasury made assessments against the Templemans

for their 1990 federal income tax liability in the amounts of

$5505.26 and $4236.00, for a total of $9741.26. A delegate of

the Secretary of Treasury issued notices and made the required

demands for payment of the 1990 assessments. The Tempelmans have

not fully paid the assessed amount. Their outstanding

(a) (West 1989 and Supp. 1999). In the present
case, however, the Tempelmans expressly waived that restriction
as part of their stipulated agreement with the IRS Commissioner.
See Pl.’s Mot. for Summ. J. (Doc. # 2 2 ) , Ex. 2 at 2 .
indebtedness for tax year 1990 is $4909.94 plus statutory

interest from September 3 , 1999.

D.   Filing of Notices of Federal Tax Liens

     On August 1 4 , 1992, the IRS filed a notice of federal tax

lien based on the Tempelmans’ unpaid tax liabilities for 1984 and

1985 in the Hillsborough County Registry of Deeds. On December

2 2 , 1993, the IRS filed a similar notice of federal tax lien

based on the Tempelmans’ 1983 and 1990 liabilities in the

Hillsborough County Registry of Deeds.

E.   The Administrative Levy

     At some point not clearly indicated by the record, the IRS

levied upon the Maple Street property and attempted to sell the

property at public auction.5   The person who bid on the property

apparently defaulted on the sale. Thereafter, on August 6, 1998,

the IRS released its levy on the property.




     5
        In its reply, the government states that the levy and
auction occurred in August 1998. See Reply (Doc. #26) at 2 . The
Tempelmans agree that the auction took place in August 1998, but
submit a Release of Levy form that indicates that the property
was levied upon on November 1 8 , 1994. See Defs.’ O b j . (Doc. #24)
¶ 8 , Ex. 2 .
F.   The Fellowship of Perfect Liberty

     On or about August 1 2 , 1998, the Tempelmans purportedly

transferred their interests in the Maple Street property to the

Fellowship of Perfect Liberty.   The Fellowship is a church or

religious organization founded by Andrew Tempelman in 1977.

Priscilla Tempelman also is a member of the Fellowship.     Members

of the Fellowship regularly meet at the Maple Street property for

discussions and/or services.

     The Tempelmans did not receive any consideration from the

Fellowship in exchange for the Maple Street property.    Rather,

they view the purported transfer as a donation.   After the

purported transfer, the Tempelmans continued to operate the inn

and restaurant on the property in the same manner as previously.

G.   Citizens Bank of New Hampshire

     The government named Citizens Bank of New Hampshire, the

successor in interest by merger to The Bedford Bank, as a

defendant in this action because it had recorded a mortgage

against the Maple Street property.    In an endorsed order dated

June 2 1 , 1999, this court granted the government’s motion for

default judgment against Citizens Bank.    In its motion, the

government requested that any court-ordered sale of the Maple

Street property be free of Citizens Bank’s mortgage lien and that
the Bank’s lien attach instead to the sale proceeds, prior in

right to the federal tax liens, to the extent that the Templemans

had any remaining indebtedness to the Bank.   On June 2 2 , 1999,

the Clerk entered a default judgment against Citizens Bank in

accordance with the June 2 1 , 1999 endorsed order.

H.   The Motion for Summary Judgment and Objection

     The government now moves for summary judgment, arguing that

there is no genuine issue of material fact in this case and that

it is entitled as a matter of law to the following: (1) a

judgment against the Tempelmans for the unpaid balance of their

assessed federal income tax liabilities for 1983, 1984, 1985, and

1990, which amounts to a total of $163,229.09 plus interest from

September 3 , 1999; (2) a decree that the government holds federal

tax liens, arising from the Tempelmans’ unpaid tax liabilities

for 1983, 1984, 1985, and 1990, upon the Maple Street property;

and (3) a decree that those liens be foreclosed by a sale of the

Maple Street property, free of the claims of all other parties to
this action, upon a proper post-judgment motion by the

government.

     The Tempelmans, acting without benefit of legal counsel,

have objected to the government’s motion on a variety of grounds.

Read in the generous light appropriate to filings by pro se

litigants, the Tempelmans’ objection contends that summary

judgment in the government’s favor is unwarranted because: (1)

the government is precluded from bringing this enforcement action

by virtue of its prior levy upon the Maple Street property and

its release of that levy; (2) the property passed by donation to

the Fellowship free from the government’s liens; (3) the

assessments for tax years 1983, 1984, and 1985, upon which some

of the liens are based, were invalid because they flowed from a

Tax Court decision tainted by fraud and/or duress; and (4) the

assessment for 1990 was inaccurate.6   For the reasons that




    6
        In a motion to dismiss for failure to state a claim
previously filed in this action, the Tempelmans argued that the
assessment for tax year 1983 was untimely and thus could not form
the basis for any judgment against them. See Defs.’ Mot. to
Dismiss (Doc. #18) ¶¶ 1-11. Because the Tempelmans have neither
included this argument in their objection to summary judgment nor
adduced any evidence to substantiate the argument, it cannot
preclude summary judgment in the government’s favor.
follow, I conclude that the Tempelmans’ arguments are

insufficient to forestall summary judgment against them.7



                    II.   STANDARD OF REVIEW

    Summary judgment is appropriate only “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).   A material fact is one “that might affect the outcome of

the suit under the governing law”; a genuine factual issue exists

“if the evidence is such that a reasonable [factfinder] could

return a verdict for the nonmoving party.”     Anderson v . Liberty

Lobby, Inc., 

 (1986).




    7
        The Templemans also argue that the federal income tax is
unconstitutional or otherwise unlawful. I agree with the other
courts that have found this contention to be without merit. See,
e.g., Cook v . Spillman, 

 (9th Cir. 1986) (per
curiam) (ruling that challenge to the constitutionality of the
federal income tax was “frivolous” and merited sanction). To the
extent that the Tempelmans’ objection contains other legal
arguments or factual allegations not discussed in this
memorandum, I have reviewed them and found them to be either
without merit or unsubstantiated by the record.
     The party moving for summary judgment “bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which

it believes demonstrate the absence of a genuine issue of

material fact.”   Celotex Corp. v . Catrett, 

(1986).   Once the moving party has properly supported its motion,

the burden shifts to the nonmoving party, which must “produce

evidence on which a reasonable trier of fact, under the

appropriate proof burden, could base a verdict for i t ; if that

party cannot produce such evidence, the motion must be granted.”

Ayala-Gerena v . Bristol Myers-Squibb Co., 

 6 , 94 (1st

Cir. 1996) (citing Celotex, 

; Anderson, 

 4 9 ) . When ruling on a motion for summary judgment, I must

construe all the evidence produced by the parties in the light

most favorable to the nonmoving party and draw all reasonable

inferences in that party’s favor. See Thomas v . Eastman Kodak

Co., 

 8 , 42 (1st Cir. 1999), cert. denied, 

 (2000).
                           II.   DISCUSSION

A.   The Prior Levy and Release of Levy

     The Tempelmans’ primary challenge to the government’s

summary judgment motion is based on the prior levy upon the Maple

Street property and the release of that levy after the

unsuccessful attempt to sell the property at auction.8    Construed

generously, the Tempelmans’ objection asserts that because the

government released the levy upon the property, it cannot now

seek to enforce its liens by means of this suit. I reject the

Tempelmans’ contention because, as explained below, it rests on a

misunderstanding of the nature of tax liens and the government’s

authority to enforce them.

     A federal tax lien arises against a taxpayer’s property when

three conditions are satisfied. First, the government must make

an assessment of a taxpayer’s tax liability.    See 

 (West 1989). 9   Second, the government must issue a notice of


     8
        If a bidder at a sale of seized property fails to pay the
purchase price as required, the IRS may treat the sale as a
nullity. See 

(e)(3) (West 1989 and Supp.
1999).
     9
        An assessment is an administrative determination that a
taxpayer is indebted to the government for taxes. It is made by
formally recording the assessed amount as provided under the tax
code and applicable regulations. See 

; 

 (1999). Special rules apply to assessments -
- such as those against the Tempelmans for tax years 1983, 1984,
and 1985 -- that are based on a deficiency of tax paid. When the
the assessment and a demand for payment within 60 days after the

assessment is made.10   See 

(a) (West 1989).

Third, the taxpayer must neglect or refuse to pay the full amount

demanded.    See 

 (West 1989).

      When these conditions are met, a federal tax lien arises as

of the date the assessment was made. See 

,

6322 (West 1989).   Once created, the lien continues to exist

until either the underlying liability is discharged or the

limitations period on enforcement runs. See 

    The lien

attaches to all property and all rights to property, whether real

or personal, belonging to the taxpayer. See 

;

United States v . National Bank of Commerce, 

(1985). 11



taxpayer has paid less than his or her total tax liability, the
assessed amount is the difference between the tax due and the tax
paid. Before making an assessment based on a deficiency, the IRS
must send a notice to the taxpayer informing him or her of the
amount of the deficiency. The taxpayer then has 90 days from the
date of mailing to file a petition in Tax Court contesting the
deficiency. See 

 (West 1989 & Supp.
1999).
      10
        The notice and demand requirement only applies when the
IRS makes an assessment pursuant to 

. See 

(a) (West 1989).
      11
        If two spouses are jointly liable for unpaid taxes, the
government may seize and sell any interest in property owned by
the spouses as joint tenants or tenants in common. See 14 Jacob
Mertens Jr., The Law of Federal Income Taxation § 54A.13 at 73
(July 1999 Semiannual Cum. Supp.).
      In this case, the United States has presented Certificates

of Assessments and Payments -- also known as Forms 4340 -- for

tax years 1983, 1984, and 1985. See Pl.’s Mot. for Summ. J.

(Doc. # 2 2 ) , Exs. 3 , 4 , 5.12   In the absence of contrary evidence,

these forms are sufficient to establish that the IRS made valid

assessments against the Tempelmans. See Gentry v . United States,

 (6th Cir. 1992); Geiselman v . United States,

 , 6 (1st Cir 1992) (per curiam); United States v .

Chila, 

 (11th Cir. 1989).         Moreover,

because they list “First Notice” (or “23C”) dates for each

assessment, see Pl.’s Mot. for Summ. J. (Doc. # 2 2 ) , Ex. 3 at 1 ;

Ex. 4 at 1 ; Ex. 5 at 1 , these same forms also constitute

presumptive proof that the IRS sent the Tempelmans notice of the

listed assessments and made demands for payment. See Hansen v .

United States, 

 (9th Cir. 1993) (per curiam);

Gentry, 

; Geiselman, 

.         Finally,

the Forms 4340, in combination with the affidavit of debt

submitted by the government, demonstrate that the Tempelmans have

failed to pay a substantial portion of the assessed liabilities



      12
        The government has also provided a Form 4340 for tax
year 1990. See Pl.’s Mot. for Summ. J. (Doc. # 2 2 ) , Ex. 7.
However, because the Tempelmans raise distinct challenges to the
government’s claims for 1983-1985 and for 1990, I address them
separately.
for 1983, 1984, and 1985. See Pl.’s Mot. for Summ. J. (Doc.

# 2 2 ) , Exs. 3 , 4 , 5 , 6.   The Tempelmans have not presented any

evidence capable of rebutting the presumption that the

assessments for 1983, 1984, and 1985 were valid and that notice

was given and demand for payment made as required.13         Nor have

they presented any evidence to counter the government’s showing

that payment in full has not been made.          Accordingly, I conclude

that federal tax liens did arise and attach to the Maple Street




      13
          The accountant’s reports presented by the Tempelmans,
see Defs.’ O b j . (Doc. # 2 4 ) , Ex 1 , cannot rebut the presumptive
correctness of the assessments for 1983-1985, because the reports
purportedly relate to the Tempelmans’ actual tax liability for
those years. The Tempelmans actual tax liability is not relevant
to the correctness of the assessments, however, because the
assessments were directly based on amounts that the Tempelmans
agreed to in their stipulated agreement with the IRS, not on any
calculation of actual tax liability. See Pl.’s Mot. for Summ. J.
(Doc. # 2 2 ) , Exs. 2 , 3 , 4 , 5 .
property as of the date of the assessments for tax years 1983,

1984, and 1985.

     The government has a number of means at its disposal for

enforcing tax liens and collecting unpaid taxes. At issue here

is the relationship between two primary mechanisms: the

administrative levy under 

 and the lien

foreclosure suit under 

. See 

, 7403 (West 1989 & Supp. 1999); Markham v . Fay, 

 (1st Cir. 1996) (discussing the two mechanisms).14

     Administrative levy is a summary process by which the

government can seize and sell a delinquent taxpayer’s property

without seeking judicial recourse. See National Bank of

Commerce, 

; United States v . Rodgers, 

 (1983).   If a taxpayer fails to pay a tax assessment

within ten days after receiving the government’s notice and

demand for payment, the government can collect the tax by levying




     14
        The government may also, as it has in this case, seek to
reduce to judgment the unpaid balance of any assessments against
a taxpayer, just as if the assessments were ordinary debts. See
United States v . Rodgers, 

 (1983); Markham, 

.
upon all property owned by the taxpayer. See 

(a) & ( d ) .   Real property that has been seized by the

government may thereafter be sold at public auction, with the

proceeds to be applied against, inter alia, the delinquent

taxpayer’s tax liability.     See 

, 6342(a) (West

1989 & Supp. 1999).     The government must notify a taxpayer of its

intent to levy upon the taxpayer’s property, but need not notify

third parties that have an interest in the encumbered property.

See 

(d); Rodgers, 

.

      The government also can enforce a federal tax lien by

bringing a civil action in federal district court. See 

(a); National Bank of Commerce, 

;

Rodgers, 

.     All parties with an interest in the

encumbered property must be joined in such a proceeding.        See 

(b).     A lien foreclosure suit is a plenary action

in which the court adjudicates the merits of all claims to and

liens upon the subject property. See 

(c).         If

the government’s claim against the property is established, the

court may decree a sale of the property and a distribution of the

proceeds in accordance with the parties’ interests in the
property.   See id.; Rodgers, 

.

     In the present case, the government levied upon the Maple

Street property, then released the levy, before bringing this

action.    The Tempelmans argue that the prior levy and release of

levy precludes the present action.    The Tempelmans are incorrect,

however, because they misunderstand the legal effect of a release

of levy.

     A release of levy neither extinguishes the underlying lien

nor discharges the specific property levied upon from the lien.

Compare 

(a) (West 1989 & Supp. 1999) (release

of levy) with 

(a) (West 1989 & Supp. 1999)

(release of lien) and 

(b) (West 1989 & Supp.

1999) (discharge of specific property from lien). 15   Rather, when

the government releases a levy upon specific property, it retains

the authority to levy upon that property at a later date o r , as

in the present case, to enforce a lien upon the property through

a subsequent civil action. See, e.g., Stewart Title and Trust of

Phoenix v . Ordean, 

 (9th Cir. 1976); KPMG Peat

Marwick v . Texas Commerce Bank, 

 (S.D. Tex.



     15
        There is no evidence in the record -- and the Tempelmans
have not argued -- that the IRS issued either a certificate of
release (extinguishing any of the liens) or a certificate of
discharge (discharging the Maple Street property from the liens)
in this case.
1997), reconsideration denied by N o . CIV. A . H-96-1512, 

 (S.D. Tex. May 2 0 , 1997); Florida Land Title C o . v .

Martinez, N o . 93-1779-CIV-T-17C, 

, at *9 (M.D. Fla.

Aug. 2 5 , 1995); United States v . Hoffman, 

, 349-

50 (E.D. Wis. 1986).    As these opinions indicate, this conclusion

follows directly from the language of the Internal Revenue Code:

§ 6343(a)(3) provides that release of a levy “shall not operate

to prevent any subsequent levy,” 

(a)(3), and §

7403(a) authorizes the filing of a lien enforcement suit “whether

or not levy has been made.”    

(a).    Accordingly,

I conclude that the present suit is not barred or precluded by

the government’s levy upon the Maple Street property or its

release of that levy.

B.   The Putative Transfer to the Fellowship

     The Tempelmans argue in their objection that they

transferred the Maple Street property to the Fellowship of

Perfect Liberty on August 1 2 , 1998 and that the Fellowship took

the property free from the government’s tax liens. I reject this
argument.   Because the liens attached to the property and notices

of the liens were properly filed prior to the date of the

putative transfer, the government may enforce the liens against

the property regardless of whether the transfer to the Fellowship

was a valid gift or a fraudulent conveyance.16

     The Internal Revenue Code provides that a tax lien on real

property is not valid as against any purchaser until notice has

been properly filed in the one office designated for such filings

under state law, o r , if state law does not designate such an

office, with the clerk of the appropriate federal district court.

See 

(a), (f)(1)(A), (f)(1)(B) (West 1989 &

Supp. 1999).   The code defines a purchaser as “a person who, for

adequate and full consideration in money or money’s worth,

acquires an interest . . . in property which is valid under local

law against subsequent purchasers without actual notice.”    

(h)(6) (West 1989 & Supp. 1999).   Accordingly, to




     16
        In its complaint, the government asked this court to set
aside as fraudulent the Tempelmans’ transfer of the Maple Street
property to the Fellowship. See Compl. (Doc. #1) at 1 , 4 .
Because, as explained in the text, I need not resolve this issue
to conclude that the government may enforce its liens against the
Maple Street property, I decline to do s o .
take real property burdened by a federal tax lien free from that

lien, a transferee must both (1) acquire the property before

notice of the lien is properly filed, and (2) pay adequate and

full consideration for the property.

      In this case, I need not determine whether purported

transfer of the Maple Street property to the Fellowship was a

valid gift or a fraudulent conveyance, because the record clearly

demonstrates that prior to the date of the purported transfer,

all of the tax liens in question attached to the property and

notices of the liens were filed in the Hillsborough County

Registry of Deeds. See Pl.’s Mot. for Summ. J. (Doc. # 2 2 ) , Exs.

3 , 4 , 5 , 6, 7 , 8 , 9.17   The Tempelmans have acknowledged that

they owned the property when the liens attached and the notices

were filed.     See 

 Ex. 1 at 8 , 21-24.    Thus, even if the

transfer was valid, the Fellowship took the property subject to

the government’s liens.18       See Rodgers, 

 n.16 (“Of


      17
        The parties have not disputed whether the Hillsborough
County Registry of Deeds was the proper office for such a filing,
nor have they addressed whether the indexing requirements under

(f)(4) (West 1989 & Supp. 1999) apply or were
satisfied in this case. Accordingly, I assume that the filing in
the Hillsborough County Registry of Deeds constituted a proper
filing under §§ 6323(a) & ( f ) .
      18
        Because it is undisputed that the Tempelmans owned the
Maple Street property when federal tax liens attached and were
filed, I need not engage in a state law analysis of their rights
in the property. See Drye v . United States, 

 7 4 , 481
course, once a lien has attached to an interest in property, the

lien cannot be extinguished (assuming proper filing and the like)

simply by a transfer or conveyance of the property.”); United

States v . Bess, 

 1 , 57 (1958) (“The transfer of property

subsequent to the attachment of the lien does not affect the

lien, for ‘it is of the very nature and essence of a lien, that

no matter into whose hands the property goers, it passes cum

onere . . . . ’ ” ) ; Rodriguez v . Escambron Development Corp., 

 2 , 93 (1st Cir. 1984) (“Under federal law, a federal tax

lien continues to encumber land, even after the legal transfer of

the land.”); Hanafy v . United States, 

 9 4 , 800 (N.D.

Tex. 1998) (concluding that plaintiff who purchased real property

after notice of federal tax lien was properly filed took property

subject to the lien); Burbano v . United States, 

 (E.D.N.Y. 1989) (same).    Accordingly, the government may

foreclose the liens regardless of whether the Tempelmans or the

Fellowship currently owns the property.19



(1999) (“We look initially to state law to determine what rights
the taxpayer has in the property the Government seeks to reach,
then to federal law to determine whether the taxpayer’s statedelineated rights qualify as ‘property’ or ‘rights to property’
within the compass of the federal tax lien legislation.”); United
States v . National Bank of Commerce, 

 (1985)
(same) (citing cases).
     19
        I note also that the Fellowship has not properly
appeared in and defended against this action. While Andrew
C.   The Tax Court Decision

     The Tempelmans suggest that the assessments of their tax

liability for 1983, 1984, and 1985 are invalid because they

flowed from a Tax Court decision tainted by coercion and/or

duress.   Specifically, the Tempelmans maintain that the October

4 , 1991 stipulated agreement between them and the Commissioner of

the IRS, which was adopted by Tax Court in its November 2 7 , 1991

decision, was obtained by “intimidation, coercion, unfair

advantage, [and] collusion.”   Defs.’ O b j . (Doc. #24) ¶ 6.   In

support of this contention, the Tempelmans have presented what

they characterize as new evidence, in the form of analyses by

independent accountants, that purports to show that the

assessments of their 1983, 1984, and 1985 tax liabilities were

erroneous.   See id. ¶ 6, Ex. 1 .

     Even assuming (but not deciding) that the Tempelmans could

launch this collateral attack on the Tax Court’s ruling as a



Tempelman purported to answer the government’s complaint both for
himself and for the Fellowship as “Founding Pastor,” see Answer
(Doc. #8) at 8 , Tempelman is not an attorney and therefore may
not appear on behalf of an independent entity or organization.
See United States v . Kitsos, 

, 1231 n.3, 1232
n.6 (N.D. Ill. 1991), aff’d, 

, N o . 91-2763, 

 (7th Cir. July 1 6 , 1992) (table; text available on
Westlaw); In re Victor Publishers, Inc., 

 (1st
Cir. 1976) (corporation); MOVE Organization v . United States
Dep’t of Justice, 

 8 4 , 693 & nn.32, 33 (E.D. Pa.
1983).
defense to the present action,20 they have failed to substantiate

their allegations of coercion and/or duress. The “new evidence”

that the Tempelmans append to their brief purportedly relates to

the actual amounts of the Tempelmans’ tax liabilities for 1983,

1984, and 1985; it is not relevant to whether the stipulated

agreement, upon which the Tax Court decision and resulting

assessments for those years were based, was obtained through fair

or foul means. Accordingly, the Tempelmans’ attack on the

stipulated agreement fails for lack of evidence.

D.   The 1990 Assessment

     Finally, the Tempelmans contest the accuracy of the

assessment of their tax liability for 1990 and maintain that they

did not receive notice of that assessment. For the reasons set

forth below, I conclude that the Tempelmans have failed to create


     20
        If the Tempelmans actually had newly discovered evidence
relevant to the means by which the stipulated agreement was
reached, their proper course of action was either (1) to present
that evidence to the Tax Court in a motion for reconsideration or
a motion to vacate or revise its decision; or (2) to appeal that
court’s decision. See Tax Court Rules 161, 1 6 2 , 190. In a
subsequent related action, the First Circuit noted that the
Tempelmans “never filed a motion for reconsideration or a motion
to vacate or revise” the Tax Court’s decision. Tempelman v .
United States, 

, N o . 92-2280, 

(1st Cir. June 3 , 1993) (table; text available on Westlaw). In
the same decision, the First Circuit noted that the Tempelmans
appealed the Tax Court’s decision, but that the appeal was
dismissed as untimely filed. See 

 at * 1 . The First Circuit
also noted that the Tempelmans’ claims of coercion or duress are
“at the very least, far-fetched.” 

 at * 2 .
a genuine factual issue material to the 1990 assessment.

     When the government brings an action to enforce an

assessment of tax liability under 

, the defendant

taxpayer may contest the merits of the assessment. See United

States v . O’Connor, 

, 526-27 (2d Cir. 1961); United

States v . Mauro, 

 (S.D.N.Y. 1965).   However,

because the IRS’s production of a Form 4340 creates a presumption

that the listed assessment is correct, the taxpayer bears the

burden of proving by a preponderance of the evidence that the

assessment was erroneous. See Helvering v . Taylor, 

 (1935); Avco Delta Corp. Canada Ltd. v . United States, 

 5 8 , 262 (7th Cir. 1976); United States v . Rexach, 

 0 , 17 (1st Cir. 1973); Psaty v . United States, 

 (3d Cir. 1971); United States v . Strebler, 

 (8th Cir. 1963); United States v . Klimek, 

 (E.D. P a . 1997); Mauro, 

.   The

taxpayer’s general denial of liability is not sufficient to carry

this burden. See Avco Delta Corp., 540 F.2d at 262.

     As noted previously, the government has produced a Form 4340

that lists the assessments made against the Tempelmans for tax

year 1990. According to that form, the Tempelmans were assessed

$5505.26 on March 3 , 1993 and $4236.00 on September 2 6 , 1994, for

a total assessment of $9741.26. See Pl.’s Mot. for Summ. J.

(Doc. # 2 2 ) , Ex. 7 at 1 .

     The IRS evidently took these figures from tax forms filed by

the Tempelmans. On August 9, 1994, the Templemans filed a Form

1040X that listed an originally reported tax liability of $5505

and a corrected tax liability of $9741, representing an increase

of $4236. See id., Ex. 1 to Ex. 1 .    The Form 1040X, which the

government has submitted as an attachment to the Tempelmans’

deposition, appears to be signed by Andrew Tempelman and by
“Priscilla J. Tempelman by Michael Asselin with POA [power of

attorney].”21   Id.   During the Tempelmans’ deposition, Andrew

Tempelman testified that he had “absolutely no recollection of

ever seeing [the Form 1040X] before.”    Id. at 1 2 . At the same

time, however, he acknowledged that it was “definitely [his]

signature” that appears on the form.    Id. at 1 5 .   Priscilla

Tempelman testified that she did not recall giving Michael

Asselin a power of attorney, but also stated that she may have

done so or probably did s o . See id. at 31-32.

     The Tempelmans’ lapses in memory do not create a genuine

dispute of material fact regarding the accuracy or validity of

the 1990 assessment.    Andrew Tempelman acknowledged that the

signature on the Form 1040X was “definitely” his. Id. at 1 5 .

His subsequent desire to “revoke” his signature, id. at 1 3 , does

not change this fact.    Moreover, while the Tempelmans attempt to

cast doubt on the authenticity of the Form 1040X, they have not

asserted -- let alone produced any evidence to show -- that the




     21
        Michael Asselin is an accountant whom the Tempelmans
employed to assist them in determining their tax liability for
various years. See Pl.’s Mot. for Summ. J. (Doc. # 2 2 ) , Ex. 1 at
12-14.
amount of tax liability reported on the form and accepted by the

IRS was inaccurate.   At most, the Tempelmans’ deposition

testimony can be construed as an unsupported denial of liability.

Accordingly, because the assessments listed on the IRS’s Form

4340 are presumptively correct and the Tempelmans have not

carried their burden of rebutting that presumption, I conclude as

a matter of law that the assessments for 1990 were accurate.

     The Tempelmans also claim that they never received notice of

the 1990 assessments. However, the Form 4340 for tax year 1990

lists “First Notice” (or “23C”) dates, see Pl.’s Mot. for Summ.

J. (Doc. # 2 2 ) , Ex. 7 at 1 , which create a presumption that the

requisite notices were given and demands for payment made. See

Hansen v . United States, 

 (9th Cir. 1993); Gentry

v . United States, 

 (6th Cir. 1992); Geiselman

v . United States, 

 , 6 (1st Cir. 1992) (per curiam).

Because the Tempelmans offer no evidence to rebut that

presumption, I conclude that the IRS gave notice and made demand

for payment as required.    Furthermore, because the Tempelmans

have not fully paid the amount assessed, see Pl.’s Mot. for Summ.

J. (Doc. # 2 2 ) , Exs. 6, 7 , I conclude that a federal tax lien
based on the 1990 assessment arose and attached to the Maple

Street property as of the date of the assessment. See 

.

      Finally, the Tempelmans have appended to their brief a

barely legible photocopy of a letter they received from the IRS,

which purports to show that they made payments or received

credits of $7888 toward their 1990 tax liability.        See Defs.’

O b j . (Doc. #24) ¶ 3 3 , Ex. 3 .   This evidence is essentially

consistent with the IRS’s Form 4340 for 1990, which lists a total

of $7881.01 in payments and/or credits. See Pl.’s Mot. for Summ.

J. (Doc. # 2 2 ) , Ex. 7 at 1 .   Accordingly, because the IRS has

already taken these payments and/or credits into account in

calculating the Tempelmans’ outstanding liability for 1990, the

letter lends no aid to the Tempelmans’ cause.




                              IV.    CONCLUSION

      For the reasons set forth above, I conclude that the

Tempelmans have failed to create any genuine issue of material

fact in this case. Accordingly, the government’s motion for

summary judgment (Doc. #22) is granted in its entirety and the
Tempelmans’ objection (Doc. #24) is denied.   The government is

entitled to a judgment against the Tempelmans for their unpaid

tax liabilities for the years 1983, 1984, 1985, and 1990, which

amount to a total of $163,229.09 plus interest from September 3 ,

1999.   The government holds federal tax liens arising from the

Tempelmans’ unpaid tax liabilities for the same years, and the

Maple Street property is subject to those liens. Upon a post-

judgment motion filed by the government, this court will order

that the government’s tax liens be foreclosed by a sale of the

property, free of the claims of all defendants to this action.

The Clerk shall enter judgment accordingly.

      SO ORDERED.




                                   Paul Barbadoro
                                   Chief Judge


March 2 1 , 2000

cc:     John Cardone, Esq.
        David Broderick, Esq.
        Andrew Templeman
        Priscilla Templeman