Greene v. United States

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FILED
No. 14-1237
(Filed: December 17 ,2015) DEC | 7 2015

,f * *,t **'*:i* *** * **** *****r* * ** rr **** **il. ** U.S. COURT OF
FEDERAL CLAIMS
MICHAEL DON GREENE,
Pro Se Plaintiff; Summary Judgment;
Plaintifl RCFC 561 3l U.S.C. g 37204;
Motion to Compel; Motion to Stay;
Illegal Exaction; Offset; Notice;
Criminal Fine; Debt; Past Due;
THE UNITED STATES, Certification

r!:f***,t****{.***.*!*'t
Defendant. *
*** ri. ***** f ;f ,t * **** ** *

Michael D. Greene, Sedona, AZ, pro se.

Jennifer D. Auchterlonie, united states Department of Justice, washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Before the court are the parties' cross-motions for summary judgment pursuant to Rule
56 of the Rules of theunited states courr of Federal claims C'RCFC'). In addirion, plaintiff,
proceeding pro se, moves to stay proceedings and to compel discovery. plaintiff argues that
when defendant offset his federal income tax overpayment for the 1995 tax year agiinst a
criminal fine owed to defendant, defendant illegally exacted the overpayment by violating
procedural requirements under 31 u.s.c. $ 37204. For the reasons set forth below, defendant's
motion is granted, and plaintiff s motions are denied.

I. BACKGROUND

Plaintiff and his wife, Sandy Greene, filed a joint income tax retum for the I 990 ta year
reflecting a tax liability of$8,870 and withholding of$9,803.76. Subsequently, they received a
refund of$933.76. The income taxes reflected on theirjoint tax return were assessed to a Joint
Master File C'JMF) account. ln 1992, the Intemal Revenue Service ("lRS") began an audit of
the Greenes for the 1990 tax year. Subsequently, the IRS's examination work papers reflected
unreported income of $888,496.75. The IRS issued to the Greenes a Notice ofDeficiency
proposing additional assessments. Specifioally, the IRS assessed against them, jointly: $ I 10,623
in taxes; an accuracy penalty of $1,646 pursuant to 26 U.S.C. g 6662(a); and $90,244.72 in
interest. These joint assessments were made to the JMF account. It was later determined that
Mrs. Greene was not liable for the entire tax liability resulting from the 1990 audit adjustments.
Thus, on March27,l998, an additional $159,207 in income taxes, a fraud penalty or$l1t,e39,
 and an accuracy penalty of$1,136 were assessed. These assessments were made to a seDarate
Non-Master File ("NMF") account solely under plaintiff s name ('.NMF l";.

Mrs' Greene's request for Innocent spouse Relief from the joint tax assessment was
thereafter granted. Because the original retum was filed jointly, and the deadline to change the
filing status to "Married Filing Separate" had passed, the tax from the JMF account was
transfened to an individual NMF account whose balance due was the sole responsibilitv of
plaintiff. This second NMF account CNMF 2') was distinct from the first oni. on June 4,
2005, the tax liabilities, penalties, interest, and payments for NMF 2 were transferred to an
Individual Master File Separate Assessment account.

on september 1,2005, plaintiff was convicted ofevasion of the payment oftaxes and
subscribing to a false tax declaration in the United States District Court foi the Northern
District
of oklahoma. See United States v. Greene, No. 04-or-209. The district court entered ajudgment
against plaintiff on March 7,2006, sentencing him to 70 months of imprisonment,
and imposrng
a $500,000 fine.

Three days later, on March 10,2006,the fine was entered into the United
-
Department of Justice's ("Department of Justice") computerized debt collection
states
system,
TALON. on April 3,2006,a Notice of Intent to offsei was generated by the Uniied States
Attorney's office via TALoN. Six years later, on septembe; B,2}r2,plaintiff
settled a tax
refund suit that was distinct from the criminal action. As part of that settlement,
he received a
$437 tax refund for the 1995 tax year, The govenrment then carried out
'423.50 an offset,
applying the $437,423.50 tax refund toward the $500,000 fine previously
ur."rr"d uguin.t
plaintiff.

of the $437,423.50 that was used to offset part of the fine, $170,124 was applied agarnsr
the tax liabilities, penalties, and interest for NMF 2', rendering
it paid in full. Howlver, as of
Aprll4,2014, NMF I had an outstanding balance of $761,101.46.

II. PROCEDURAL HISTORY

Plaintiff filed suit on February 12,2014, in the United states court
of Federal clarms
("courtof Federal claims"). plaintiff has filed three motions. The first is a motion to stay
proceedings pending resolution ofGreene v. United
States, No. 08-cv-021, in the United States
District Court for the District of Arizona. pl motion is to compel discovery.
Finally, plaintiff s third motion is for summary pursuant
iudgment to RCFC 56. Defendant has
opposed all three motions and filed a cross-motion for summary
iudgment. The motions nave
been fully briefed, and the court deems oral argument unneoessary.

III. LEGAL STANDARDS

A. RCFC56
Summary judgment is appropriate when there is no genuine
. issue of material fact and the
moving party is entitled to a judgment as a matter of law. RtFc 56(a);
celotex co;. ;. catrett,
 477 U'5.317,322 (1986). A fact is material if it "might affect the outcome of the suit under the
goveming law." Anderson v. Liberry Lobb).,. Inc. ,477 U.5.242,249 (1986). An issue is
genuine if it "may reasonably be resolved in favor ofeither party." Id. at250.

The moving party bears the initial burden ofdemonstrating the absence ofany genurne
_
issue of material fact. celotex com.,477 tJ.s. at323. The nonmoving party then beari the
burden of showing that there are genuine issues ofmaterial fact for triil.
Wat324. Both parties
may carry their burden by "citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations. sti-oulations
(including those made for purposes of the motion only), admissions, interrogarory un.*".r,
o.
other materials" or by "showing that the materials cited do not establish the abs"n.. o. pr.r"n".
ofa genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact." RCFC 56(c)(l).

The court must view the inferences to be drawn from the underlying facts in the light
most favorable to the nonmoving party. Matsushita Elec. Ind. co. v. Zenitf, Radio
com., 475
U.S.574'587(l986).Howev^er,thecourtmuStnot*"ig@offu"t.
See Anderson, 477 u.s. at 249 ("[A]r the summary
iudgment stage the judge,s function is not
himself to weigh the evidence and determine the truih of the matter but to determine
whether
there is a genuine issue for trial."); contessa Food prods.. Inc. v.
conagra. Inc. ,2g2 F .3d, 1370,
1376 (Fed. c.o.2002) ("on summary
iudgment, th. q*rti"" tr th. \r"tghrl of the evidence,
""t abroeateion other grounds
but instead the presence ofa genuine issui of material fact . . . .,,),
by
Equrtiarl Goddess. Inc. v. Swisa. Inc., 543 F.3d 665 (Fed. Ci.. ZooS) (ilb;tmqrcq
v. united Srates, 157 F.3d 849, 854 (Fed. cir. 199g) (,.Due to rhe nature
of th" p-.""ding, .ou.t,
do_notmake findings of fact on summary judgment.',); Mansfield v. united
states, zr nei. cr.
687 ,693 (2006) ("trlhe court may neithei mut
a.t".,,'rnutio^ n* *"igr, th.
" "reaiuitity
evidence and seek to determine the truth of the matter. Further, summary judgment"is
inappropriate if the factual record is insufficient to allow the Court
to deiermiie the salient legal
issues."). Entry of summary judgment is mandated against a party who
fails to establish,,an
element essential to that party's *9 on which th-at party-wili bear the burden of proof at
"u-r?,,
llial" eeblerlgarp.,477 u.s. at322. However, if neither party meets this burden on the liling
for summary judgment, then the deny both motion.. S"*".g., Cuout
9f "l::r:-ot19n:
66 P'ship v. United States, S7 Ct.722,723 "ou.t -rr*i
(2009); Dick pac./cHEMM. JV v-;_iFd
f:{.
States, 87 Fed. Cl. 113, 126 (2009).

B. Tucker Act
The ability ofthe Court ofFederal Claims to entertain suits against
the United States is
limited. "The united States, as sovereign, is immune from suit save is it
consents to be sued.,,
Untled States v. Sherwood, 312 u.s. 584, 596 (1941). A waiver of immunity ,,cannot be implied
'states
m.ust be unequivocarly expressed-" United v. King, 395 u.s. r, 4'(1969). The Tucker
lut
Act, the principal statute governing thejurisdiction ofthis court, waives
sovereign immunity for
claims against the united States not sounding in tort that are founded
upon the c"onrtituiion, u
federal statute or regulation, or an express oiimplied contract with the
United States. 2g u.s.c.
$ 1491 (2012). However, the Tucker Act is meiely a jurisdictional statute and.,does not creare
any substantive right enforceable against the United SLtes for
money damages." United States
v. Testan,424 u.s. 392,398 (1976). Instead, the substantive right must appear in another source
of law, such as a "money-mandating constitutional provision, statute or regulation that has been
violated, or an express or implied contract with the united States." Loveladies Harbor. Inc. v.
United States, 27 F .3d 1545, 1554 (Fed. Cir. 1994) (en banc).

C. Illegal Exaction Claims Based on Offsets pursuant to 3l U.S.C. S 37204

The United States Court ofAppeals for the Federal Circuit has explained that an illegal
exaction "involves money that was 'improperly paid, exacted, or taken from the claimant in
confavention of the constitution, a statute, or a regulation.',' Norman v. United States 4zg F.3d
(Fed. Cir.2005) (quoting Eastporr s.s. corp. v. united statei,372 F2d 1002, 1007
19811]095
(ct. cl. 1967)); see also Figueroa v. United stares, 66 Fed. ct. nsSa 12005) (defining illegal
exaction claims as "those where the claimant seeks the retum ofall or part of; sum of rioney
he
has been improperly required to pay by the Government in contravention of the
constitution, a
statute, or a regulation"), aff d,466 F.3d 1023 (Fed. cir.2006). while,,[t]he prototypical
illegal
exaction claim is 'a tax refund suit alleging that taxes have been improper\ collect#or
withheld bv the government,"'Kipple v. united States, r02 Fed. ci.lir,ill (2012) (quoting
N9*+, 429 F .3d at I 095), a plaintiff may allege an illegal exaction claim thui i, ,rot a tu*
refund. As set forth in 26 U.s.c. g 6a02(g), "[njo action-brought against the united
states to
recove-r the amount ofany such reduction
[of a tax refund by an offiet] shall be considered to be
a suit for a refund of tax."

offsets are described in 31 U.s.c. g 37204. Under g 3720A(a), .,[a]ny Federal
agency
tfatls_ owe.d,bf a person a past-due, legally enforceable debt... shall
. . . i,6ti'4, the Secjary of
the.[United states Departmentof_the] Treasury
[("Department of the Treasury;)] at least once
each year of the amount of such debt." Subsequently, the secretary ,,shalr
deieimine whether
any amounts, as refunds of Federal taxes paid, are payable to such person.
If the secretary ofthe
Treasury finds that any such amount is payable, he shalr reduce such
refunds by aa amount equar
such debt [and] pay the amount of such reduction to such agency
lg lh: "T9y! "f
U.S.C. $ 3720A(c). However.
"
.... :f

[n]o Federal agency may take [such] action . . . until such agency__

(l). notifies the person incuning such debt that such agency proposes to take
[such]
action...;

(2) gives such person at least 60 days to present evidence that all or part of
such debt
is not past-due or not legally enforceable;

(3) considers any evidence presented by such person and determines that an amount
of such debt is past due and legally enforceabli;

(4) satisfies such other conditions as the Secretary may prescribe to ensure
that the
determination made . . . with respect to such debtls vaiid and that the
agency has
m-ade reasonable efforts (determined on a govemment-wide
basis) to ob-tain payment
of such debt; and
 (5) certifies that reasonable efforts have been made by the agency . . . to obtain
payment of such debt.

rd. s 3720A(b).

The Court ofFederal Claims possesses jurisdiction over an illegal exaction claim based
on an offset pursuant to 31 u.s.c. $ 3720.4.. In orderto invoke TuckeiAct jurisdiction over an
illegal exaction claim, "a claimant must demonstrate that the statute or provision causing the
exaction itselfprovides, either expressly or by'necessary implication,' that .the remed/for its
violation entails a return of money unlawfully exacted.", Noiman, 42g F.3d at 1095 (quoung
cyprus Amax coal co. v. united states, 205 F.3d 1369,1373 (Fed. cir. 2000)). witi respect to
offsets, 3l u.s.c. $ 37204 "necessarily impl[ies] a monetary remedy if the Govemment
perpetrates an illegal exaction pursuant to
[its] authority [because] . . . absent a monetary
remedy, a litigant has no recourse to recover wages unlawfully gamished or income tax refunds
unlawfully offset." wagstaff v. United States, 105 Fed. cl. 99, it | (2012). Thus, this courr
retains jurisdiction over illegal exaction claims based on an offset. rinnte,
toz Fed.cLat777
(holding that the court has jurisdiction over an illegal exaction bur"d on an offset pursuant
to 31
Y q c I 37204 because "[t]he remedy would be a retum ofthe money."). Further, whereas a
plaintiffcannot invoke this court's jurisdiction over a tax refund claim
until the plaintiffhas tirlly
paidthetaxesforthedisputedperiod,Florav.UnitedStates,362u.s.63,Ts(1i60),aplaintiff
who alleges an illegal exaction claim based on an offset need not have fully paia
tne iax tlaUitity
for this court ro have jurisdiction, Ibrahim v. United States, I l2 Fed. cl. 3i3, 336 (2013).

IV. DISCUSSION

^
$437
.-- - Ilhis,complaint, plaintiff notes that the IRS offset his federal income tax overpayment
of
for the 1995 tirx year against a criminal fine assessed for the 1990 tax year.' plaintiff
'423.50
alleges that when the IRS carried out the offset, it failed to follow
the procedural requirements
set forth in 3l U.S.c' $ 37204- Specifically, plaintiff asserts,
the IRS failed: to notifu him of
the proposed offset; to allow him sixty dayi to present evidence
that that all or part of"the fine
was not past due; to certifu the debt; and to make a reasonable
effort to obtain payment ofany
debt' Thus, plaintiff claims, the offset was an illegal exaction, and he seeks judgment
inthe
amount of $437,423.50 plus interest.

A. plaintiffs Motion to Stay proceedings

Plaintiff filed a separate, unrelated suit in the United States District Court for
^
of Arizona alleging that he is entitled to a refund ofa portion ofthe 1995 tax ouerpuym"nt,
the District

which the IRS applied as an offset against NMF 2 as
iart of his 1990 tax liability. ln his motlon
to stay proceedings before this court, plaintiff argues ihat because the district
court litigation is
ongoing, and the courr will determine "if a tax liability. . . exists', for
the 1990 tax y"ui, thi,
should be stayed pending that determination. pl.'s Mot. to stay r. Defendant
responds by "ur"
contending that no stay is warranted because the issue of plainiiff s 1990
tax tiabiiity ls nit
before this court and does not implicate these proceedings.
 Defendant is correct. When resolving defendant's motion to dismiss for lack of subject
mafter jwisdiction, the district court determined that NMF I and NMF 2 were "sufficiently
separate assessments for jurisdictional purposes." Pl.'sNotice, Docket No. 16,Ex. l at8. The
court reasoned that because the tax liability "tracked in" NMF t had an unpaid balance of
$761,101.46, the court lacked jurisdiction to review plaintifps tax refund claim as to that
account. Id. at 2. The court cited Flora, in which the United States Supreme court held that
there is "no room for contention'' ofthe "principle" that taxpayersrnuri "puy first and litigare
later;' 357 U.S. at 75. Thus, the district court found that it had no jurisdiction to review NMF 1.
By contrast, the court also held that because the balance in NMF 2 was paid in full. the court had
jurisdiction over plaintiffs tax refund claim concerning that account. Consequently.
even ifthe
district court ultimately finds that the offset pertaining io NMF 2 was improper, that
determination would not affect NMF 1 because that cburt previously detirmined that it lacks
jurisdiction to entertain a claim related to NMF 1. If plainiiff were prevail
io in the district court
with respect to NMF 2, the $761 , 1 0 I .46 outstanding balance in NMF I would remain an
outstanding debt owed to the Department of the Treasury. Moreover, this court,s review
rs
limited to determining whether the offset that already occurred was an illegal exaction,
a
determination that is not affected by plaintiffs 1990 tax liabiliry. Thus, thls court's
finding as to
whether theoffset was proper would not be impacted by the district court's conclusions
regarding NMF 2 or any findings conceming plaintiff s 1990 tax liability. Accordingly,
there is
no basis to stay this case pending the outcome ofthe district court litigation,
ana ptalitiirs
motion is denied.

B. plaintifps Motion to Compel Discovery
Plaintiff has also filed a motion to compel discovery. Specifically, plaintiff seeks
to
"compel the deposition ofthe IRS representative regarding the irue
and conect amount of 1990
tax liability, if any . . ' ." Pl.'s Mot. to compel 2. In respJnse, defendant
argues that this court
lacks jurisdiction to review the underlying merit ofplaintiffs 1990
tax liabiiity. Further,
defendant the deposition that plaintiff seets is beyond the scope ofiiscovery permitted
by RCFC 26 ^contends,
because it seeks information that is neither relevant to the issues
in this case nor
reasonably calculated to lead to the discovery of admissible evidence.

court finds that plaintiff has no basis to seek such discovery in this case. plaintiff
.does notTh9
advance a tax refund claim here, but, rather, brings an illegal exaction claim,arguing
that statutory procedural requirements were not satisfied when the
IRS canied out an'offlet.
Thr'rs, examining the proper amount of plaintiffs tax liability
has no bearing on whether the
offset that occurred constitutes an illegal exaction. Seekingihe deposition
6f an IRS
representative regarding the merits of plaintiff s 1990 ta.r liability is not,,relevant',
to either
"party's claim or defense," as RCFC 26(bx1) requires ofdiscovery requests.
There is no
indication that plaintiffs discovery request is "reievant to the subject matter
involved in ths
pending action," or that it is "reasonably calculated to lead to the
discovery of admissible
evidence "r Id. Ultimatery, defendant'i "offer to produce a witness
for deposition who can

I on December l, 2015, the Federal
Rules of civil procedure (.,FRCp',) were amended.
Revised FRCP 26(bxl) now provides:
 explain the IRS records that establish the existence of the unpaid 1990 assessment," which
plaintiff has not yet accepted, more than sufficiently accommodates plaintiffs request. Def.'s
Response to Pl.'s Mot. to compel 6. Moreover, to permit the discovery that plaintiff seeks
would be improper in light ofthis court's lack ofjurisdiction. Even if plaintiff was requesting a
tax refund, the court would not have jurisdiction to entertain that requeit because his tax liability
has not been fully paid. As mentioned earlier, it is well settled that this court oossesses
jurisdiction over a tax refund claim only ifa plaintiffhas fully paid the tax liatilities
or penalties
challenged. Flora, 357 U.S. at 75.

Finally, plaintiff s 1995 tax overpayment was applied to offset a fine levied in a criminal
proceeding. To the extent that plaintiff challenges the validity ofthe Oklahoma district
court,s
determination of his 1990 tax liability and resuliant fine in united states v. Greene, No.
04-cr-
209, this cout lacks jurisdiction to undertake any such."ui"*. ,,1t1he co,.r.t of r"deral
claims
does not have jurisdiction to review the decisions of district courts . . . ."
Joshua v. united
states, 17 F.3d 378, 380 (Fed. cir. 1994). Accordingiy, plaintiff s motion to di*ou.ry i,
denied. "*p"l
C. The Parties' Cross_Motions for Summary Judgment
In his motion for summary judgment, plaintiff contends that when the IRS offset
his 1995
tax overpayment of $437,423.50 against the criminal fine assessed for the 1990
tax year, the IRs
failed to_follow certain procedural requirements required by 3l u.s.c. g
3720A. plaintiffargues
that the IRS did not provide him with notice ofthe proposed offset befoie
or after it was carried
out. Further, plaintiff asserts that he was not past due on his fine payments. He
contends that the
IRS did.not give_ him 60 days to present evidence to that effect, denying
him ar,,oppornrnity to
be heard as to whether the fine was past-due and if it was a legally
enforceable debt.', pt.'s tytot.
for Summ. J. 5' Plaintiff also asserti that the IRS failed to provide a
certification that the debt
was past due.- According to plaintiff, the offset was therefoie
an illegal exaction, and he requests
the retum ofthose funds.

.Defendant argues in its cross-motion that it did provide plaintiff with notice of the offset
before it occurred. In addition, defendant contends, plaintiff also
received notice after the offset

Scope in General. Unless otherwise limited by court order, the
scope of discovery
is as follows: parties may obtain discovery regarding any nonpriviieged
matter
that is relevant to any party' s claim or defense and proportional to
thJ needs of the
case, considering the importance of the issues at stake in the
action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importaace of the discovery in resolving the
issues, and whether the
burden or expense ofthe proposed discovery outweighs its likely
benefit.
Information within this scope ofdiscovery need not be admissibre in evidence
to
be discoverable.

The court ofFederal claims' local rules have not yet been revised
to conform with newly
FRCP 26(bxl). The divergence in text, iowever, poses no issue in
T:"9:9
plaintiff s claim lacks merit and discovery would be futile.
this case because
 occurred by electronic-mail message from the Department ofJustice attomey assigned to his
1995 refund case.

Further, defendant asserts, plaintiffls debt was certified. Defendant argues that plaintiff s
criminal fine was referred to the Treasury offset program (.'Top') in 2006. 0nder thai program,
defendant notes, payments that are made by the Treasury, including tax refunds issued by the
IRS, are offset against outstanding debts due to the United States. befendant contends that after
plaintiff s fine was referred to the Top, the debt was certified annually by the U.S. Attorney's
Oflice.

Defendant also notes that the judgment imposing the criminal fine provided that it was
due in full immediately, and that if it was not paid immediately, it was payable on a schedule.
The judgment set fo(h that notwithstanding the schedule, nothing could prohibit the govemment
from executing or levying upon plaintiffls property discovered before or after the judimenr,
defendant explains. Defendant thus argues that even if plaintiff could establish that hi
complied
with the payment schedule, which he has not, entry ofthejudgment against his property allowed
the govemment to seize such property to obtain piyment;fthe fine.

Finally, defendant contends that even if the govemment erred in its compliance with the
statutory requirements that plaintiff identifies, because such purported errors
weie procedwal in
nature, a retum of the offset funds is_not the proper remedy-and even if a monetary
was entered, the government would be required under 31 u.s.c. 372g,
iudgment
$ a differenisiatuie, to
offset that judgment against plaintiffs criminal fine, making entry ofthejudgment
futile.

Defendant's arguments are correct. The court first tums to plaintiffs argument
that he
did not receive notice of the offset. As described earlier,3l u.s.c.
$ 37204 re{uires that if an
individual owes a legally enforceable to a federal agency that is past due, the Secretary of
_debt
the Treasury may offset the individual's tax refund agaiist the debt,
but must provide notice
sixty days prior to the offset. Here, plaintiff s criminal fine was entered into ieLoN,
tte
computerized debt collection system ofthe Department ofJustice's
Financial Litigation Unit
(.'FLU). Pusuant to the FLU's standard p.o"idu.", plaintiff s address was also
Jntered into the
system. Decl. of Libbi L. Felty (*Felty Decl.') 5. on April 3,2006,Libbil-.
u Felty, a paralegal
specialist at the FLU, entered a "Treasury offsei programNotice,' event into
TALdN, which
caused a notice to be generated and mailed to plaintifi. Id.,lf 6. The
April 3,2006 notice
informed plaintiffthat his outstanding debt w;s refened by ihe Department
of Justice for
inclusion in the ToP. Id. The TALON system was later converted to
the consolidated Debt
Collection System ("CDCS"). Defendant provides electronic records fiom
CDCS that indicate
that plaintiffs $500,000 fine was_entered into th" ryrt"-. See id., Ex.
A at 6. These records, as
well as a cDCS report generated by the Debt colleition Management Staff of
the Department of
Justice regarding the collection_of plaintiff s criminal fine, indlate ..1aln
event for [the] ToP 60 Notice Lener
that on April ,, -f
[was] created." See Decl. of Jennifer d. Auchterlonrc
("Auchterlonie Decl.'), Ex. B at 13. Although defendant does not possess
a copy ofthe notice
letter that it contends was mailed to plaintiff, it provides a copy ofthe
standard 6orm ,.Notice of
Intent to offset" that the Department ofJustice iends when undertaking
an offset. rd,, at26.
 It appears that defendant's computer system did indeed generate the standard notice of
intent to offset, as indicated by the record of the event in the system, and that the notice was
subsequently sent to the address on file for plaintiff. "The likelihood of actual receipt . . . is not
the relevant standard" to determine whether defendant met the notice requirement. Kipple v.
united states, 105 Fed. cl. 651,656 (2012). Rather, "[b]y sending a notificarion letter to
plaintiff at his address on file, the [govemment] satisfied the notice requirements. Relevant
regulations provide that notification or a "reasonable attempt to notify should be sent to the
taxpayer," and such attempts include sending a letter to an address on file with the IRS. Id.; see
26 C.F.R. $ 301.6402-6(d)( 1) (2000) (stating that sending a notice to the last address that the IRS
has on file would be reasonable); 3l c.F.R. S 285.2(dX2XD (2000) (providing that relying on the
address currently on file with the agency is reasonable). Further, the notice was sent on April 3,
2006, more than sixty days before the September 13,2}lzoffset. Thus, the IRS satisfied the
sixty-day notice requirement set forth in 31 U.S.C. g 37204.

In addition, plaintiff s arguments that his criminal fine was not past due, and that it was
not properly certified as a past-due debt, are inconect. Plaintiff asserts that he timely made his
payments, but does not provide any documentation or other evidence thereof. Further, the
judgment imposing the fine provided that it was "due in full immediately,,'
and that if it was not
paid immediately, it was "payable on a schedule" described therein. Auchterlonie Decl.,
Ex. A
at 8. Thus, because the fine was not paid immediately, it was past due. More saliently,
whether
plaintiff s criminal fine was past due is ultimately inconsequential here. The judgmenistated
that "[n]otwithstanding establishing ofa payment schedule, nothing shall p.ohibil th"
unit.d
States from executing or levying upon property ofthe defendant diicovered before
or after the
date of this Judgment." Id. Indeed, lg u.s.c. g 3613(a) provides that,,a judgment
imposing a
fine may be enforced against all property or rights to proierty ofthe person fined . . .
1,1;,"*""pt
in certain circumstances that do not apply her". rnus, the esiablishment of a payment schedule
does not preclude the govemment from undertaking collection activity, such
as iefenal ofa debt
to the ToP for offset. See United stares v. James, 3 l2 F. supp.2d g)i, s06-07 (E.D. va.
2004);
u-nited States v. weissenbach, No. 08-cr-172-1,2010 wL zi4anl,at *2 (w.D.N.c. June 2,
2010). The payment schedule is merely one of several means by which thi govemment
may
obtein payment of a judgment. James,3l2F. Supp.2d at g06-07; United Stites v. Hanharat,353
F' Supp' 2d957'960 (l'J.D. I11.2004). Thus, because plaintiff. fin" ** notluid ir.rrn"diut"ty, it
was considered past due, and notwithstanding that status, his property, including tax refunds,
was
subject to being used to offset the fine.

Further, the electronic records that defendant provides indicate that the fine was
certified
annually by the united states Attomey's office. Speiificalty, the fine was recertified
on: March
16, December 7, and December 18,2007; December 1g,200s; andApril g,2009.
Auchterlonie
Decl., Ex. B at 13. In addition, the criminal debt was certified by the Clerk ofthe United States
District court for the Northem District of oklahoma on December l,20ll. Felty Decl., Ex.
B at
10. The certification provided that plaintiff s debt was.,valid and legally enforceable."'
Consequently, plaintiffs criminal fine was properly certified.

The court next turns to plaintiffs contention that he did not receive notice ofthe offset
after it was carried out. Under 3l u.s.c. $ 3720A(hX1)(A), ,,[t]he disbursing official
of the
Department of the Treasury shall notify a taxpayer in writing ofitre o."u.."nI. ofan
offset to
satisry a past-due legally enforceable nontax debt." Plaintiff received such written notice. In his
response to defendant's interrogatories during discovery, plaintiff stated that he received notice
of the September 13,2012 offset almost one month later, on October 9,2012. Auchterlonie
Decl., Ex. B at 29. Specifically, plaintiff represented that Anne E. Nelson, the attorney assigned
to his tax refund case for the 1995 tax year, informed him ofthe offset by electronic-mail
message on that date. ld,. at29-30. Further, plaintiff admits the same in his motion. Pl.'s Mot.
Summ. J. 3. He also indicates that he called the Financial Management Service at the
Department ofthe Treasury on October 11,2012, and was informed that his tax refund "had been
released to FLU." Id. Thus, plaintiff received written notice after the offset, in accordance with
the statutory requirement thereof.

Finally, even if the court were to find that the IRS failed to comply with the notice
requirements outlined above, the remedy for any such error would not be a retum ofthe offset
funds to plaintiff. The notice requirements are "bereft of any indication that a payee subject to
the Treasury Offset Program may obtain money damages from the govemment if the notice
given the payee is deficient." Wilburn v. United States, l03Fed. Cl.495,499 (2011). "[T]here
is no reasonable basis for inferring that the alleged failure of [Financial Management Service at
the Department of the Treasury] to meet all the specifics of the notice requirements. . . entitles a
plaintiff to an award of monetary damages for their violation." Id. Moreover, if the court were
to determine that plaintiff was entitled to a retum ofthe offset funds and entered a monetary
judgment against defendant, the govemment would then be required to apply that judgment
toward his criminal fine. See 31 U.S.C. g 3728 (stating that the "Secretary ofthe Treasury shall
withhold paying that part of a judgment against the United States Govemmcnt . . . that is equal
to a debt the plaintiff owes the Government," and that the "[t]he Secretary shall discharge the
debt if the plaintiff agrees to the setoff and discharges a part ofthe judgment equal to the debt; or
withhold payment ofan additional amount the Secretary decides will cover legal costs of
bringing a civil action for the debt if the plaintiff denies the debt or does not agree to the setoff[]
and have a civil action brought if one has not already been brought."). Thus, granting plaintiff
the reliefthat he requests here would be futile because the funds would then be offset against his
fine, by virtue of a separate statute. Consequently, plaintiff s motion for summary judgment is
denied, and defendant's cross-motion is sranted.

V. CONCLUSION
For the reasons set forth above, the court DENIES plaintiffs motion to stay proceedings,
DENIES plaintiff s motion to compel discovery, DENIES plaintiff s motion for summary
judgment, and GRANTS defendant's cross-motion for summary judgment. Plaintiff s complaint
is DISMISSED. No costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

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