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United States v. Leon E. Boomershine Ann Cramer, Individually and as Trustee of the Leon Eugene Boomershine Irrevocable Trust and the Gene Boomershine Irrevocable Trust Duane Cramer Jacqueline Helscel Dena Helscel and Tammy Helscel, and Mary M. Boomershine, 968 F.2d 1224, 10th Cir. (1992)
United States v. Leon E. Boomershine Ann Cramer, Individually and as Trustee of the Leon Eugene Boomershine Irrevocable Trust and the Gene Boomershine Irrevocable Trust Duane Cramer Jacqueline Helscel Dena Helscel and Tammy Helscel, and Mary M. Boomershine, 968 F.2d 1224, 10th Cir. (1992)
2d 1224
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
The United States brought this action against Defendants Leon Boomershine,
Ann Cramer, individually and in her capacity as trustee of the Leon Eugene
Boomershine Irrevocable Trust and the Gene Boomershine Irrevocable Trust,
Duane Cramer, Jacqueline Helscel, Dena Helscel, and Tammy Helscel.1 The
government sought, pursuant to 26 U.S.C. 7401-7403, to reduce
Boomershine's unpaid tax liability to judgment, to set aside as fraudulent his
conveyances of real property to the other defendants, and to foreclose federal
tax liens against the fraudulently transferred property.2
The district court determined that the transfers were fraudulent. The court
granted the government's motion for summary judgment, entered judgment for
the government in the amount of $1,182,542.40, upheld the tax liens on the
disputed properties, and ordered the properties foreclosed and sold to satisfy
the liens. Defendants argue that Boomershine's affidavit, submitted in
opposition to the government's motion for summary judgment, creates a
genuine issue of material fact, and therefore, summary judgment is
inappropriate. We disagree.
A federal tax lien arises upon assessment for unpaid taxes, and attaches to all
property belonging to the delinquent taxpayer. 26 U.S.C. 6321-6322. Under
ordinary circumstances, a tax lien will not attach to property which the taxpayer
has transferred and no longer owns. However, if a taxpayer fraudulently
transfers property in anticipation of the imposition of a tax lien, the government
may seek relief under the applicable fraudulent conveyance laws of the state in
10
1. with actual intent to hinder, delay, or defraud any creditor of the debtor; or
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12
....
15
On appeal, Defendants argue only that Boomershine was solvent at the time of
the transfers, and therefore, the transfers were not fraudulent conveyances.
Defendants contend that Boomershine's affidavit, submitted in opposition to the
government's request for summary judgment, was sufficient to create a genuine
issue of material fact as to his solvency which precludes the grant of summary
judgment.
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We hold that Defendants did not make an adequate showing of the existence of
a genuine issue of material fact. Accordingly, the district court properly entered
summary judgment for Plaintiff, and the judgment of the United States District
Court for the Eastern District of Oklahoma is AFFIRMED.
Honorable Dale E. Saffels, Senior District Judge, United States District Court
for the District of Kansas, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
Ann Cramer and Jacqueline Helscel are the daughters of Leon Boomershine.
Duane Cramer is his son-in-law, and Dena and Tammy Helscel are his
grandchildren
2
There are six parcels of real property which were in dispute. One parcel,
previously transferred to Boomershine's son, Leon E. Boomershine II, has been
determined fraudulently conveyed, and has been foreclosed. Defendants do not
appeal this judgment. Consequently, five parcels remain at issue
Leon and Mary Boomershine were divorced in 1987. It appears that the IRS has
not pursued Mary Boomershine in regard to the tax deficiency, and she is not a
party to this appeal