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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

FINDINGS AND RECOMMENDATIONS

—NFN—

Pursuant to plaintiffs’ application for a temporary

restraining order, the Honorable David F. Levi has referred to

this court for findings and recommendations the question whether

the taxes the IRS now seeks to collect fall within the scope of

this court’s July 6, 2005,order and whether injunctive relief

should issue.

I previously found this court had jurisdiction pursuant to

26 U.S.C. § 6330(d) to hear plaintiffs’ challenge to the IRS’s

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September 2, 2004, Notice of Determination Concerning Collection

Action. In that proceeding, the IRS determined plaintiffs were

liable as partners in Tele-Link Communications for its taxes for

the last quarter of 2002 and the first three quarters of 2003. 

Plaintiffs alleged that despite the original formation of a

partnership, they had been shut out by their co-partners. I

invited a brief from the IRS upon the effect of such conduct by

co-partners upon plaintiff’s remaining personal liability for

partnership debts by effecting a de facto dissolution of the

partnership. The IRS has served and filed the invited motion but

it is not helpful and simply reiterates that the IRS based its

determination plaintiffs were personally liable upon the original

partnership documents--the very documents that plaintiffs allege

their former co-partners and fiduciaries breached.

Plaintiffs now seek to enjoin the IRS from levying upon

their personal assets to collect taxes owed by Tele-Link for

different tax periods both before and after the periods over

which I found this court had jurisdiction. Plaintiffs have not

demonstrated this court’s independent jurisdiction over these tax

periods but allowing the IRS to proceed would irrevocably

undermine any just review by this court of plaintiffs’ personal

liability as partners for the periods over which the court

certainly does have jurisdiction and on that basis I recommend

the injunction issue subject to the proviso that plaintiffs not

seek to sell or encumber any property pending resolution of the

issue.

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These findings and recommendations are submitted to the

Honorable David F. Levi, the United States District Judge

assigned to this case. 28 U.S.C. § 636(b)(l). Written

objections may be filed within ten days after being served with

these findings and recommendations. The document should be

captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” The failure to file objections within the

specified time may waive the right to appeal the District Court’s

order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: August 30, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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