Barry Seagrave v. United States of America

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2007
Decided April 3, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3445
BARRY SEAGRAVE,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Divison
No. 1:05-cv-890-DFH-VSS
David F. Hamilton,
Judge.
O R D E R
Barry Seagrave owed federal income taxes for 1989 and 1990. The IRS
assessed the taxes on November 29, 1993, and finally collected them between
February and April 2004. Seagrave sued for a refund, see 28 U.S.C. § 1346(a)(1),
arguing that the IRS did not initiate collection activity within the ten-year time
limit imposed by 26 U.S.C. § 6502(a). The district court granted summary
judgment for the government on the ground that Seagrave twice proposed
installment payment plans which extended the deadline for collection until
September 2004. Seagrave appeals and we affirm.
The government concedes that the IRS did not seek to collect the back taxes
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-3445 Page 2
within the original ten-year deadline. At summary judgment, however, the IRS
tendered affidavit testimony from an agency employee who said he determined by
reviewing computerized records that twice during the ten-year period Seagrave
proposed paying in installments. The employee testified that Seagrave first
proposed an installment plan on July 25, 2002. The IRS accepted that plan on
August 22, 2002, but then Seagrave failed to make the required payments.
According to the IRS employee, Seagrave then proposed a second installment plan
on November 21, 2002. The IRS rejected this proposal on July 5, 2003. Based on
this testimony, the government argued that the IRS was timely when it finally
levied on Seagrave’s wages because the limitations period was suspended a total of
254 days while his proposals were under consideration, 26 U.S.C. §§ 6331(k)(2)(A),
6503(a)(1), and for an additional 30 days after the second offer was rejected,
id. § 6331(k)(2)(B). See 26 C.F.R. § 301.6331-4(c)(1).
Because Seagrave was unrepresented, the government notified him, see
Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982), that under Local Rule 56.1 the
district court would accept as true its version of the facts unless he offered specific,
admissible contradictory evidence. See S.D. Ind. Local R. 56.1(b), (e). Despite this
admonishment, however, Seagrave replied with an unsworn, two-paragraph
response insisting that the IRS had “not proved its case” because it had “not
provided the court with any written proof of the installment agreements [it was]
alleging.” Seagrave added that he was unable to discern any entries on the IRS
transcripts of account in his possession reflecting “transactions of an installment
agreement.” The district court held that Seagrave failed to comply with the local
rule and thus concluded that the government’s evidence that he twice proposed
installment plans was undisputed. Those proposals, the court reasoned, had
extended the collection deadline to September 8, 2004, making the levy in February
timely.
On appeal Seagrave reprises his contention that the government failed to
prove the existence of an installment agreement because the government did not
produce evidence of a written agreement. But Seagrave misses the point. Although
the Internal Revenue Code and IRS regulations do seem to suggest that any
approved installment agreement between taxpayers and the IRS must be in writing,
see 26 U.S.C. § 6159(a); 26 C.F.R. § 301.6159-1(b)(2), we can find no requirement
that a taxpayer’s initial request for an installment agreement also be in writing.
See http://www.irs.gov/faqs/faq-kw93.html (last visited March 20, 2007) (informing
taxpayers who owe money that they may use form or call toll-free number to
request installment agreement). And since at summary judgment Seagrave never
denied under oath (indeed, he has never denied at all) that he twice proposed
installment plans that the IRS considered, the district court correctly credited the
government’s representation that it spent 254 days considering Seagrave’s
proposals. See S.D. Ind. Local R. 56.1(a); Waldridge v. Am. Hoechst Corp., 24 F.3d

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No. 06-3445 Page 3
918, 922-23 (7th Cir. 1994) (explaining that where non-moving party at summary
judgment neglects to meet requirements of Rule 56.1, court will assume facts
presented by moving party as true); see also McNeil v. United States, 508 U.S. 106,
113 (1993) (stating that in ordinary civil litigation even pro se litigants must follow
procedural rules); Ammons v. Aramark Unif. Serv., Inc., 368 F.3d 809, 817 (holding
that district court entitled to expect strict compliance with Rule 56.1, not merely
substantial compliance). Because this review period and the IRS’s rejection of
Seagrave’s second request extended the collections deadline a total of 284 days, see
26 U.S.C. §§ 6331(k)(2)(A), (B), 6503(a)(1), and rendered the tax levy timely, the
district court properly granted the government’s motion for summary judgment.
AFFIRMED.

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