The opinion of the court was delivered by: CURTIN
The United States of America ("the Government") instituted this suit pursuant to 26 U.S.C. § 7405 to collect an erroneous refund of federal taxes.
Jurisdiction exists under 26 U.S.C. § 7402 and 28 U.S.C. §§ 1340 and 1345. There are several motions before me for decision: plaintiff's motion for summary judgment against defendant Augspurger; plaintiff's motion for summary judgment on its "counterclaim in reply" against defendant Loeb, Rhoades & Co. ("Loeb"); defendant Augspurger's motions for partial dismissal and for partial summary judgment; defendant Loeb's motions for summary judgment on its counterclaim and cross-claim for interpleader, for discharge and for dismissal of the complaint and cross-claim; and defendant Augspurger's motion for a trial by jury.
Plaintiff's Motion for Summary Judgment Against Defendant Augspurger and Defendant Augspurger's Motions for Partial Summary Judgment and Partial Dismissal
The Government argues that it is entitled to a judgment declaring the monies received by Charles H. Augspurger from the Internal Revenue Service to be an erroneous refund and that it is entitled to have a constructive trust imposed upon the proceeds of the refund which were invested with Loeb. Defendant Augspurger (the personal representative of Charles H. Augspurger, now deceased) claims that there are material questions of fact which preclude the court from rendering a decision declaring the refund to be erroneous. She argues, in the alternative, that Fed. R. Civ. P. rule 56(f) is applicable, and that a continuance or denial of the motion is warranted in this situation. She has also moved to dismiss the portion of the complaint requesting the imposition of a constructive trust. In addition, she has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. rule 12(c) with respect to her counterclaim, which asks the court to declare the assessment made on Charles H. Augspurger on February 22, 1971 to be invalid, to declare the liens and levies imposed as a result of the assessment to be invalid and to enjoin the Government from any further attempts to collect monies pursuant to such assessment, liens and levies.
Before proceeding to the merits, there are some preliminary matters that must be disposed of. The Government applied for leave to file supplemental affidavits and records. The records comprise certificates of assessment and purport to show all the outstanding tax liabilities of Charles H. Augspurger. All the certificates of assessment were completed May 23, 1977. The Government is granted leave to file the affidavits and accompanying documents, but they will be considered only for the limited purpose of showing payments credited to decedent's account with relation to the February 22, 1971 penalty assessment. Defendant Augspurger has offered the affidavit of Leland C. Cook, her attorney, in support of her motions. His affidavit does not meet the requirements set forth in Fed. R. Civ. P. rule 56(e) and has been treated as if it were a brief. Defendant Augspurger's motion concerning the constructive trust was made pursuant to Fed. R. Civ. P. rule 12(c); it will be treated as a motion for summary judgment.
Defendant Augspurger's Rule 56(f) Motion
Rule 56(f) of the Federal Rules of Civil Procedure permits a district court judge to either deny a motion for summary judgment or order a continuance of the motion, when it appears from the affidavits of the party opposing the motion "that [she] cannot for reasons stated present by affidavit facts essential to justify [her] opposition." Although Mrs. Augspurger's affidavit does not state that it is offered in support of her Fed. R. Civ. P. rule 56(f) motion, her memorandum of law shows that this issue is one of her primary arguments against the Government's summary judgment motion. In the affidavit (sworn to December 31, 1976) she states that she has "no knowledge * * * which would indicate whether or not" the Government's allegation that the check received by her husband was an erroneous refund "is true." The application of rule 56(f) is warranted where the knowledge of the facts in issue is in the exclusive control of the moving party. However, it is not enough merely to assert that the moving party has exclusive knowledge or control of the facts. "The opposing party must show to the best of [her] ability what facts are within the movant's exclusive knowledge or control; what steps have been taken to obtain the desired information pursuant to the discovery procedures under the Rules; and that [she] is desirous of taking advantage of these discovery procedures." 6 Moore's Fed. Pract., para. 56-24. See, also, United States v. Donlon, 355 F. Supp. 220 (D. Del. 1973), aff'd 487 F.2d 1395 (3d Cir. 1973). Defendant Augspurger has failed to elaborate on what information is within the exclusive control of the Government, which has furnished the court with extensive records concerning the penalty assessment against Charles H. Augspurger. His representative does not state what additional information is missing or what information within the Government's control would support her opposition to the motions. She has not made any attempt to obtain discovery from the Government.
In one of her memoranda it is stated that her opposition to summary judgment is based on her ignorance of the facts surrounding the February 22, 1971 penalty assessment and the financial affairs of the corporation with which her deceased husband was associated. The Government has provided numerous documents with respect to the penalty assessment showing the facts that led it to the conclusion that the refund was erroneously made and defendant Augspurger has access to the financial affairs of the H.R. Weissberg Corp. (the said corporation) which is equal to, if not greater than, the Government's. She does not contest the fact that a penalty assessment was made, but merely argues that she has no knowledge whether or not the refund was erroneous. It is the corporation
that has control over the facts concerning its payment of the withholding taxes and the facts concerning any payment that might have been made on behalf of Mr. Augspurger.
In addition, defendant Augspurger has control over the records of her late husband and has not attempted to supply the court with any information such as a cancelled check, which would show a complete or partial payment made by Charles H. Augspurger.
Defendant Augspurger's motion for a continuance is denied. Denial of plaintiff's motion for summary judgment on the basis of Fed. R. Civ. P. rule 56(f) is not warranted in this case.
Plaintiff's Motion for Summary Judgment on the Issue of the Erroneous Refund
Summary judgment is a drastic device that should only be granted when there is no genuine issue as to any material fact. Gladstone v. Fireman's Fund Insurance Co., 536 F.2d 1403, 1406 (2d Cir. 1976). The court is to determine whether or not there are issues to be tried and is not to resolve any disputed issues of fact. American Manufacturers Mutual Insurance Co. v. American Broadcasting Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967). In deciding a motion for summary judgment, a court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought * * * with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute." Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir. 1975); Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. 1975).
Most of the facts are undisputed. Defendant Augspurger, in her answer, denied the Government's allegations that the check was a tax refund check and that the refund was erroneous. The face of the check shows that it is a tax refund check; therefore, that issue cannot be said to be genuinely in dispute. The issue whether or not the refund was erroneous is a conclusion of law, not fact. Defendant Augspurger also disputes the Government's assertion that the penalty ...