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United States v. Chicorel

United States District Court, E.D. Michigan, Southern Division

April 24, 2017

ESTATE OF ALBERT CHICOREL, et al., Defendants.



         In this action Plaintiff United States of America seeks to recover back taxes allegedly owed by Defendant Estate of Albert Chicorel. Before the court is the government's motion for summary judgment. (Dkt. # 22.) The matter is fully briefed and a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the court will grant the motion in part and direct further briefing.

         I. BACKGROUND

         The following facts are undisputed unless otherwise noted. Decedent Albert Chicorel died on October 26, 2006. (Dkt. # 25, Pg. ID 274.) In the year prior to his death, Decedent was placed into a conservatorship under the supervision of the Oakland County Probate Court. (Id. at Pg. ID 275.) The court-appointed conservator prepared Decedent's 2002, 2003, and 2004 federal income tax returns. (Id.) Defendants aver that “virtually of Decedent's income reported in these tax returns was stolen from the Decedent by his business associates.” (Id.)

         A delegate of the Secretary of the Treasury made timely assessments against Decedent for unpaid federal income taxes, penalties, and interest for each year's unpaid taxes. (Dkt. # 22, Pg. ID 216.) The assessments are reflected in the following table, taken from Defendants' opposition brief:

Tax Period

Tax Assessment Date

Initial Assessment [(Dkt. # 25-4)]

Balance due as of 03/09/2016 according to Plaintiff



$140, 903.52

$234, 250.05



$175, 825.98

$292, 760.79



$108, 294.20

$184, 709.71


$425, 023.70

$711, 720.55

(Dkt. # 25, Pg. ID 276.) Plaintiff avers that as of March 1, 2017, the total amount due is $738, 344.26. (Dkt. # 22-3.)

         Shirley Behar, successor conservator for Decedent, sent a request for collection due process hearing concerning the 2003 and 2004 taxes to the IRS dated June 27, 2006. The IRS responded on February 7, 2007, with a letter titled “Notice of Determination Concerning Collection Action(s) under Section 6329 and/or 6330.” (Dkt. # 22-4, Pg. ID 255; Dkt. # 22-5, Pg. ID 264-65.) The IRS letter advised Ms. Behar that the IRS would file a proof of claim in the probate proceeding once it was opened and no other collection action would be taken at that time. (Dkt. # 22-4, Pg. ID 261.)

         Unsupervised probate proceedings commenced in the Oakland County, Michigan Probate Court on March 6, 2007. Decedent's nephew, Richard Behar, was appointed personal representative on April 27, 2007. Michigan statute requires the personal representative to publish a “notice to creditors” stating that creditors have four months after the date of publication to present their claims. Mich. Comp. Laws § 700.3803. Pursuant to the statute, Mr. Behar published a notice to creditors on May 4, 2007, in the Oakland County Legal News. (Dkt. # 25, Pg. ID 288.)

         The IRS mailed a proof of claim for the assessed income taxes to the Oakland County Probate Court and Steven Cohen, attorney for Mr. Behar, on January 28, 2009. (Dkt. # 22-6.) The proof of claim was recorded with the Oakland County Probate Court the following day. (Dkt. # 22-7.) The probate proceeding is ongoing, and no other collection action took place until the government filed the instant litigation on March 11, 2016. (Dkt. # 1.)

         II. STANDARD

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]hat burden may be discharged by showing . . . that there is an absence of evidence to support the nonmoving party's case.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (internal quotation marks omitted). The burden then shifts to the nonmovant, who must put forth enough evidence to show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citation omitted). Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). In evaluating a summary judgment motion, “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 . . . credibility judgments and weighing of the evidence are prohibited.” Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015) (internal quotation marks and citations omitted).


         Defendants raise two arguments in opposition to summary judgment. First, Defendants contend that the court should decline to exercise its jurisdiction over this matter under principles of comity. Second, Defendants argue that the government is barred by the statute of limitations from enforcing the 2002 assessment.[1] The court will reject ...

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