USA v. Donohoe et al

MOTION for Summary Judgment

D.N.H.September 27, 2016

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE UNITED STATES OF AMERICA, ) PLAINTIFF ) ) VS. ) Case No. 16-CV-67-SM ) ANDREW J. DONOHOE, JR., ET AL., ) DEFENDANTS ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON COUNT II OF THE COMPLAINT NOW COMES the Defendant, Donna T. Schipani, by and through her attorney, Steven G. Shadallah, Esquire, and respectfully moves this Court pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on Count II of the Complaint on the grounds that there are no genuine issues of material facts stating further as follows: 1. In Count II of its Complaint, the Plaintiff alleges it is entitled to enforce a tax lien under 26 U.S.C. Sections 6321 and 6322 for the unpaid taxes of Andrew J. Donohoe (hereinafter “Andrew”) against the real property located at 8 Saddlepath Road, Raymond, New Hampshire (hereinafter the “Property”). 2. The Plaintiff alleges it filed notices of federal tax liens with the Rockingham County Registry of Deeds against Donohoe. See Complaint Paragraph 14. 3. The Plaintiff further claims under 26 U.S.C. Sections 6321 and 6322 that on November 6, 2006 and on January 1, 2007, the dates of assessments, federal tax liens arose in favor of the Plaintiff against Donohoe’s interest in the Property. See Complaint Paragraph 14. 4. The Plaintiff claims that on June 9, 2008 when it filed the notices of tax liens that Donohoe owned a ½ interest in the Property. Case 1:16-cv-00067-SM Document 20 Filed 09/27/16 Page 1 of 2 5. However, as addressed in the Memorandum of Law and supporting affidavits of Richard J. Maloney and Donna T. Schipani, filed herewith, Donohoe did not own any record title in the Property on the date of the notices of the federal tax liens. 6. Since Donohoe did not have any record title interest in the Property on the dates the liens were filed, the Plaintiff has no right to seek a forced sale of the Property or to collect Donohoe’s back taxes against the Property. 7. The Defendant therefore submits that she is entitled to summary judgment on Count II as there is no genuine issue of material fact. WHEREFORE the Defendant respectfully moves this Court for the following relief: A. To grant summary judgment in her favor on Count II of the Complaint. B. For such other and further relief as may be just and proper. Dated: September 27, 2016 Respectfully submitted, Donna Schipani By her attorney __/s/ Steven G. Shadallah________ Steven G. Shadallah, Esquire #2302 197 Main Street Salem, New Hampshire 03079 (603) 893-9000 sgs@shadlaw.net CERTIFICATE OF SERVICE I, Steven G. Shadallah, Esquire, counsel for the Defendant, Donna Schipani, in the within matter on the 27 th day of September, 2016 hereby certify that I electronically filed the within Defendant’s Motion for Summary Judgment on Count II of the Complaint on behalf of the above named Defendant with the Clerk of Court using the ECF system which will send notification of such filing to all other counsel of record electronically. __/s/ Steven G. Shadallah________ Case 1:16-cv-00067-SM Document 20 Filed 09/27/16 Page 2 of 2 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE UNITED STATES OF AMERICA, ) PLAINTIFF ) ) VS. ) Case No. 16-CV-67-SM ) ANDREW J. DONOHOE, JR., ET AL., ) DEFENDANTS ) DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT NOW COMES Donna T. Schipani (hereinafter “Donna”) by and through her attorney, Steven G. Shadallah, Esquire, and respectfully submits the within Memorandum of Law in Support of her Motion for Summary Judgment. In Count II the Government seeks to enforce a federal tax lien for unpaid taxes of Andrew J. Donohoe (hereinafter “Andrew”). Donna contends that summary judgment is proper because Andrew was not a record owner of the property which the Government sought to lien. Pursuant to Rule 56 of the Federal Rules of Civil Procedure the Court shall grant summary judgment if there is no genuine issue of material fact in dispute. A genuine issue exists only when the evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Such is not the case here. The real property the Government sought to lien is located at 8 Saddlepath Road, Raymond, New Hampshire (hereinafter the “Property”). On May 27, 1999 Andrew and Donna transferred the Property to themselves as Trustees of the Donohoe Family Revocable Trust of 1999 (hereinafter the “Family Trust”). The Property remained titled in the Family Trust until September 22, 2008 when Case 1:16-cv-00067-SM Document 20-1 Filed 09/27/16 Page 1 of 3 Andrew and Donna as Trustees of the Family Trust conveyed the Property to Donna alone as a result of their divorce settlement. As stated in the Complaint the Government filed a lien against Andrew on May 26, 2008 and then again against Andrew and Donna as Trustees of the Donohoe Realty Trust of 1999. See Complaint Paragraphs 12-14. However, as evidenced by the Affidavit of Richard J. Maloney filed herewith, from May, 1999 and all times relevant to this action the Property was owned by the Family Trust not by Andrew and not by the Realty Trust. Accordingly, the Government did not properly file its lien against the proper record title holder as required by 26 U.S.C. Section 6323(f). The Government’s liens against Donohoe and the Realty Trust are ineffectual because the record title owner at the time of the recording of the liens at the Rockingham County Registry of Deeds was actually the Family Trust. Neither Donohoe nor the Realty Trust had any interest in the Property that the Government attempted to lien at the time the liens were recorded. Accordingly, Donna submits that it is indisputable that at the time the Government filed its liens against Andrew and the Realty Trust neither were the record title owners of the Property that the liens were intended to attach against. Donna therefore submits that there can be no genuine issue of material fact in dispute as she is entitled to judgment as a matter of law that the Government is not entitled under Count II to enforce its federal tax liens since the notices the Government filed against Andrew and the Realty Trust were ineffectual to lien the Property which was at all times relevant hereto owned by the Family Trust. Donna therefore respectfully submits that this Court should grant summary judgment in her favor under Count II of the Complaint. Case 1:16-cv-00067-SM Document 20-1 Filed 09/27/16 Page 2 of 3 Dated: September 27, 2016 Respectfully submitted, Donna Schipani By her attorney __/s/ Steven G. Shadallah________ Steven G. Shadallah, Esquire #2302 197 Main Street Salem, New Hampshire 03079 (603) 893-9000 sgs@shadlaw.net CERTIFICATE OF SERVICE I, Steven G. Shadallah, Esquire, counsel for the Defendant, Donna Schipani, in the within matter on the 27 th day of September, 2016 hereby certify that I electronically filed the within Defendant’s Memorandum of Law in Support of Motion for Summary Judgment on behalf of the above named Defendant with the Clerk of Court using the ECF system which will send notification of such filing to all other counsel of record electronically. __/s/ Steven G. Shadallah________ Case 1:16-cv-00067-SM Document 20-1 Filed 09/27/16 Page 3 of 3 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE UNITED STATES OF AMERICA, ) PLAINTIFF ) ) VS. ) Case No. 16-CV-67-SM ) ANDREW J. DONOHOE, JR., ET AL., ) DEFENDANTS ) AFFIDAVIT OF RICHARD J. MALONEY I, Richard J. Maloney, on my oath depose and say as follows: 1. I am a tax attorney and certified public accountant licensed to practice in such capacities in the State of New Hampshire. 2. I maintain an office at 15 Dartmouth Drive, Suite 203, Auburn, New Hampshire. 3. I am assisting in the defense of Donna Schipani Donohoe. 4. I have personal knowledge of the facts stated in this affidavit. 5. I have carefully reviewed the records of the Rockingham County Registry of Deeds and in doing so find that the records reveal the following: A. On May 27, 1999 Andrew J. Donohoe and Donna T. Schipani transferred the property at 8 Saddlepath Road, Raymond, New Hampshire (hereinafter the “Property”) to Andrew J. Donohoe and Donna T. Schipani Donohoe as Trustees of the Donohoe Family Revocable Trust of 1999 (hereinafter the “Family Trust”) by virtue of a deed recorded at Book 3397, Page 0861. B. On May 26, 2008 the Plaintiff filed a notice of tax lien against Andrew J. Donohoe at Book 4924, Page 1883 of the Rockingham County Registry of Deeds concerning the Property. It was refiled by the Plaintiff on February 22, 2016 and appearing at Book 5693, Page 0832 of the Rockingham County Registry of Deeds. Case 1:16-cv-00067-SM Document 20-2 Filed 09/27/16 Page 1 of 2 C. On or about June 3, 2008 the Plaintiff filed another notice of tax lien against an entity referred to as the Andrew J. Donohoe and Donna T. Schipani Donohoe Realty Trust of 1999 (hereinafter the “Realty Trust”) recorded at Book 4923, Page 0984 of the Rockingham County Registry of Deeds. It was refiled by the Plaintiff on February 22, 2016 and appearing at Book 5693, Page 0829 of the Rockingham County Registry of Deeds. D. On September 22, 2008 Andrew J. Donohoe and Donna T. Schipani Donohoe as Trustees of the Donohoe Family Revocable Trust of 1999 transferred their interest in the Property to Donna T. Schipani Donohoe. 6. Given the foregoing title transfers, the records of the Rockingham County Registry of Deeds reveal that Andrew J. Donohoe did not own any interest in the Property on the date of the notice of tax liens of May and June, 2008 referenced above. 7. Additionally, the Realty Trust did not hold title to the Property on the date of the notice of tax liens in May and June of 2008 referenced above. 8. In fact, the record title holder of the Property on the date of the notice of tax liens of May and June, 2008 according to the Rockingham County Registry of Deeds records was in fact the Family Trust. 9. The records of the Rockingham County Registry of Deeds do not reveal that the Plaintiff ever filed a notice of tax lien in this case against the Family Trust which according to the records of the Rockingham County Registry of Deeds has been the record title holder of the Property since 1999. Under 28 U.S.C. Section 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Dated: September 27, 2016 ___/s/ Richard J. Maloney____________ Case 1:16-cv-00067-SM Document 20-2 Filed 09/27/16 Page 2 of 2 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE UNITED STATES OF AMERICA, ) PLAINTIFF ) ) VS. ) Case No. 16-CV-67-SM ) ANDREW J. DONOHOE, JR., ET AL., ) DEFENDANTS ) AFFIDAVIT OF DONNA T. SCHIPANI I, Donna T. Schipani, on my oath depose and say as follows: 1. My name is Donna T. Schipani and I am a Defendant in the above entitled matter. 2. I reside at 8 Saddlepath Road, Raymond, New Hampshire (hereinafter the “Property”). 3. I have personal knowledge of the facts stated herein. 4. Additionally, I have reviewed the Motion for Summary Judgment, the supporting Memorandum of Law and the Affidavit of Richard J. Maloney and state that any facts stated therein I have personal knowledge and are true to the best of my information and belief. 5. On February 4, 1999 I along with my then husband, Andrew J. Donohoe, for estate planning purposes established the Donohoe Family Revocable Trust of 1999 (hereinafter the “Family Trust”). 6. In furtherance of our then estate plans we transferred the Property from ourselves individually to the Family Trust by virtue of a deed dated May 27, 1999 and recorded at Book 3397, Page 0861 of the Rockingham County Registry of Deeds. Case 1:16-cv-00067-SM Document 20-3 Filed 09/27/16 Page 1 of 2 7. The record title to the Property was vested in the Family Trust from May 27, 1999 until September 12, 2008 when my husband and I as Trustees of the Family Trust deeded the Property to myself individually as a result of the settlement of our divorce case. 8. I have owned the Property individually in my name since September 12, 2008. 9. At no time relevant to this matter was the Property ever owned by an entity referred to in Paragraph 12 of the Government’s Complaint as the Andrew J. Donohoe & Donna T. Schipani-Donohoe Realty Trust of 1999. 10. Throughout our marriage my husband and I always filed separate tax returns. 11. The taxes that the Government seeks to collect are owed by my ex-husband and not by myself. 12. Neither my ex-husband nor the Realty Trust had any record title ownership in the Property on the dates of the Government’s notice of tax liens. Under 28 U.S.C. Section 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Dated: September 27, 2016 ______/s/ Donna T. Schipani_______ Case 1:16-cv-00067-SM Document 20-3 Filed 09/27/16 Page 2 of 2