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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

DAVID L. ELMORE, et al.,

Defendants.

CASE NO. C05-810JLR

ORDER

This matter comes before the court on Defendant David Elmore’s motion for a

temporary restraining order (“TRO”) or preliminary injunction. (Dkt. # 2). The court has

reviewed Defendant’s motion and supporting evidence, and has reviewed the

Government’s responsive papers. Neither party has requested oral argument. For the

reasons stated below, the court DENIES Defendant’s motion.

Defendant Elmore has unpaid federal income tax assessments and statutory

penalties totaling more than $500,000. As part of its effort to seize assets to satisfy the

unpaid assessments, the Government brought this action to establish its right to reduce

those assessments to a judgment against a property in Kent, Washington (“Kent

Property”). Although Defendant Elmore is not the owner of record of the Kent Property,

the Government seeks to establish that he is the actual owner.

Case 2:05-cv-00810-JLR Document 7 Filed 05/18/2005 Page 1 of 3

United States of America v. Elmore et al Doc. 7

Dockets.Justia.com
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1

In ordering the Government to respond to Defendant Elmore’s motion, the court noted

that Defendant Elmore is proceeding pro se in this matter, and thus agreed to “consider his

motion, for the time being, as part of a counterclaim addressing the Renton Property.” (Dkt. # 4).

ORDER – 2

The Kent Property, however, is not the subject of Defendant Elmore’s motion for a

TRO or preliminary injunction. His motion focuses instead on an unimproved parcel of

property in Renton, Washington (“Renton Property”). Because Defendant Elmore is

clearly the owner of record of the Renton Property, the Government has levied unpaid tax

assessments against that property, has seized it, and intends to sell it at auction on May

25, 2005, all pursuant to its levy and distraint authorization under 26 U.S.C. § 6331. See

United States v. Rodgers, 461 U.S. 677, 682-83 (1983) (noting that administrative levy

procedures under § 6331 require no judicial intervention). Defendant Elmore seeks

injunctive relief to stop the sale.

Although the Renton Property is not part of this action, the court has considered

Defendant Elmore’s motion in order to ensure that there is no manifest injustice in the

seizure and sale.1

 Having reviewed the Government’s response to the motion, the court

finds that it is without authority to enjoin the sale of the Renton Property.

To begin with, the court notes that the evidence the Government has provided to

the court demonstrates that it has complied with all statutory formalities necessary to

seize and sell the Renton Property. It properly issued the underlying tax assessments and

provided Defendant Elmore with notice of its intent to levy on the property. See 26

U.S.C. § 6330. It has followed procedures for levy and distraint of the property. See 26

U.S.C. § 6331. Moreover, the evidence shows that Defendant Elmore has not taken

advantage of his opportunity to contest the assessments and the levy on the Renton

Property. 

Case 2:05-cv-00810-JLR Document 7 Filed 05/18/2005 Page 2 of 3
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ORDER – 3

Under these circumstances, even if the Renton Property was the subject of this

action, the court would be without authority to enjoin its sale. The Anti-Injunction Act

(26 U.S.C. § 7421) prevents a court from enjoining a tax collection proceeding except

under narrow circumstances not applicable here.

The court therefore declines to enjoin the sale of the Renton Property. As the

court is now convinced that there is no manifest injustice in the planned sale of the

property, the court will not further consider any dispute over Renton Property unless it is

properly made part of this action, or is otherwise properly brought before the court.

For these reasons, the court DENIES Defendant Elmore’s motion for a TRO or

preliminary injunction (Dkt. # 2).

Dated this 18th day of May, 2005.

A JAMES L. ROBART

United States District Judge

Case 2:05-cv-00810-JLR Document 7 Filed 05/18/2005 Page 3 of 3