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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JAMES L. LABER and LAURA M. LABER,

Plaintiffs,

v.

DEPARTMENT OF THE TREASURY,

INTERNAL REVENUE SERVICE,

 Defendant.

CIV. S-04-2078 DFL PAN PS

ORDER 

—NFN—

This court’s findings and recommendations filed August

31, 2005, are vacated. 

The parties are directed to appear before this court on

Wednesday, September 28, 2005, at 9:00 a.m., in Courtroom 25, to

address the merits of plaintiffs’ motion to temporarily enjoin

defendant IRS’s collection proceedings against plaintiffs as

partners in Tele-Link Communications for tax periods ending

September 30, 2000 through December 31, 2001, June 30, 2002,

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1 See, e.g., Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir. 2002),

citing Bretz v. Kelman, 773 F.2d 1026, 1027, n. 1 (9th Cir. 1985) (“[W]e have

an obligation where the petitioner is pro se . . . to construe the pleadings

liberally and to afford the petitioner the benefit of any doubt”); Garaux v.

Pulley, 739 F.2d 437, 439 (9th Cir. 1984) (“This circuit has long had a rule

of liberal construction of pleadings presented by pro se litigants”). 

2

September 30, 2002, and December 2003. 

Also, the IRS shall show cause at the hearing why

sanctions should not be imposed upon it for breaching

representations made by its attorney to this court on June 22,

2005. Fed. R. Civ. P. 11(b) and (c).

At the June 22, 2005, hearing on defendant’s motion to

dismiss for lack of subject matter jurisdiction, this court

liberally read, as it must, the pro se plaintiffs’ pleadings1

(including 160 pages of exhibits) to deny defendant’s motion on

the ground jurisdiction is conferred by 26 U.S.C. § 6330(d). The

court did not specify the initial parameters of this jurisdiction

until its July 6, 2005, order, when it identified plaintiffs’

timely appeal of the IRS’s September 2, 2004, Notice of

Determination Concerning Collection Actions for tax periods

ending December 2002 through September 2003. I expressly stated

in my July 6 order that the court’s jurisdiction may be broader

and invited both parties to brief whether this court could

consider additional tax periods and assessments. I noted that 

defendant’s collection activities were expressly suspended under

26 U.S.C. § 6330(e) for tax periods ending December 2002 through

September 2003 but relied upon defendant’s representations the

IRS would pursue no significant collection proceedings for the

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2 This period includes an additional three days for service pursuant to

Fed. R. Civ. P. 6(e). 

3

entire period 2000 through 2003. 

Defendant’s attorney represented at the hearing that the

IRS would not foreclose any of plaintiffs’ property until

resolution of this case (“we will not try to foreclose”). 

Plaintiffs agreed they would not dispose of any property to which

the IRS may later have a claim. Further, I granted defendant’s

request for a late August deadline to file its summary judgment

motion (due to the attorney’s vacation plans) provided “the

status quo is maintained.”

The IRS has now informed plaintiffs in a handwritten

personal note attached to its August 11, 2005, “Final

Notice/Notice of Intent to Levy” for tax period ending December

2003 that “enforced collection may include placing a levy on your

bank accounts, wages, receivables, commissions, etc. It could

also involve seizing and selling your property, such as real

estate, vehicle, or business assets.” Plaintiffs state the

revenue officer informed them they should sell their residence or

produce a contract to do so before August 31, 2005. 

The contours and merits of this suit and the extent of

this court’s jurisdiction have yet to be resolved, including

plaintiff’s exhaustion of administrative remedies to appeal

additional notices of tax deficiency. Several matters are

outstanding. Plaintiffs’ response to defendant’s motion for

summary judgment is not due until Monday, October 17, 2005;2

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3 That agreement includes the following provision:

 

5. Limitation of Release. The parties acknowledge that neither

party is releasing any other party from liability for any claims,

causes of action, judgments, liens, obligations, indebtedness,

costs, damages, losses, claims, liabilities, and demands that in

any way relate to payroll taxes doe Tele-Link and/or income taxes

for Tele-Link.

4

defendant has an additional 30 days to respond and has set the

hearing on its motion for November 16, 2005. On September 14,

2005, Magistrate Judge Kimberly J. Mueller will hear plaintiffs’

response to an order to show cause why their action against the

Cottells (Jim Laber et al. v. Robert Cottell et al., Civ. S 04-

1427 FCD KJM PS) should not be barred under the terms of a

stipulated settlement agreement (expressly excluding release from

tax liabilities) filed December 11, 2003, in the U.S. Bankruptcy

Court.3 

Defendant opposes plaintiffs’ motion for injunctive

relief based upon this court’s initial jurisdictional assessment

and the argument plaintiffs remained viable partners in Tele-Link

Communications 2000 through 2003. These are, however, the

precise issues the court must decide upon defendant’s motion for

summary judgment. Defendant’s dogged pursuit of plaintiffs is

inconsistent not only with defendant’s representations to this

court but with this court’s deliberative process. Defendant’s

actions appear to be no more than an end run against the

authority of this court, a matter defendant shall address

September 28.

////

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So ordered.

Dated: September 14, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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