IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA and )

MARY ARNDT, Revenue Officer )

of the Internal Revenue Service, )

)

Plaintiffs, )

)

v. ) Civil Action No. 1:09-cv-158-SJM

)

EBERT G. BEEMAN, )

)

Defendant, )

)

v. )

)

GE CLIENT SERVICE )

BUSINESSES, et al., )

)

Third-party Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., District J.,

This civil action was commenced on June 30, 2009 when the United States and

Mary Arndt, acting as Revenue Officer of the Internal Revenue Service (IRS), filed a

complaint against Defendant Ebert G. Beeman to enforce an IRS summons. The

complaint arose out of the Service’s investigation into Beeman’s federal income tax

liability relative to certain tax years. On May 2, 2008, the IRS, then acting through

Revenue Officer Ed Pattison, issued a summons to Beeman directing him to appear at

a specified location on June 12, 2008 and to produce for examination certain books,

papers, records or other data pertinent to the on-going investigation. 

Beeman partially complied with the subpoena but, as to tax years 2000 and

2001, the IRS deemed his compliance insufficient. Thus, the complaint seeks an order

which, among other things, would direct Beeman to fully comply with the terms of the

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 1 of 23
 This Court has jurisdiction over the matters raised in the complaint pursuant to 1

28 U.S.C. § 1345 and 26 U.S.C. §§ 7402(b) and 7604(a).

2

summons, particularly as it relates to the years 2000 and 2001.1

On October 6, 2009 and again on October 19, 2009, Beeman, proceeding pro

se, filed two documents, both entitled “Specific Affidavit of Negative Averment,

Opportunity to Cure, and Counterclaim” [7] and [9]. In these documents, Beeman

purports to assert claims against Arndt and Pattison as well as GE Client Business

Services and Keith S. Sherin relative to certain liens, levies and/or garnishments which

were imposed in January and September of 2009 against his property and/or bank

accounts. Arndt and Pattison have moved for summary judgment on these claims,

while GE Client Business Services has filed a motion to dismiss them. To the extent

Beeman’s “Specific Affidavit of Negative Averment, Opportunity to Cure, and

Counterclaim” constitutes an answer to the Plaintiffs’ complaint, Plaintiffs have filed a

motion to strike the answer as untimely. Also pending before the Court, of course, is

the Government’s original complaint to enforce the IRS summons. After considering

the appropriate standards of review and the relevant background facts, I will address

each of these matters in turn.

I. STANDARD OF REVIEW

A. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent

standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520-521(1972). If the court can reasonably read pleadings to state a valid claim on

which the litigant could prevail, it should do so despite failure to cite proper legal

authority, confusion of legal theories, poor syntax and sentence construction, or

litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364

(1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 2 of 23
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(petition prepared by a prisoner may be inartfully drawn and should be read “with a

measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992);

Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our

liberal pleading rules, during the initial stages of litigation, a district court should

construe all allegations in the pleadings in favor of the complainant. Gibbs v. Roman,

116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.

1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land

Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Beeman is proceeding

pro se in this case, the foregoing standards will be applied.

B. Motion to Dismiss

In reviewing a motion to dismiss filed pursuant to Federal Rule of Civil Procedure

12(b)(6), the claims at issue must be viewed in the light most favorable to the

complainant and all the well-pleaded allegations must be accepted as true. Erickson v.

Pardus, 551 U.S. 89, 95 (2007). A complaint must be dismissed pursuant to Rule

12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (rejecting the

traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See

also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937 (May 18, 2009) (specifically

applying Twombly analysis beyond the context of the Sherman Act). 

A court need not accept inferences drawn by the plaintiff if they are unsupported

by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v.

The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion

School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must a court accept legal

conclusions set forth as factual allegations. Twombly, 550 U.S. at 556 (citing Papasan

v. Allain, 478 U.S. 265, 286 (1986)). See also McTernan v. City of York, Pennsylvania,

577 F.3d 521, 531 (3d Cir. 2009) (“[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”) (quoting

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 3 of 23
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Iqbal, ___ U.S. at ___, 129 S. Ct. at 1949) (alteration in the original). A plaintiff’s factual

allegations “must be enough to raise a right to relief above the speculative level.” 

Twombly, 550 U.S. at 556. Although the United States Supreme Court does “not

require heightened fact pleading of specifics, [the Court does require] enough facts to

state a claim to relief that is plausible on its face.” Id. at 570. 

In other words, at the motion to dismiss stage, a plaintiff is “required to make a

‘showing’ rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan,

2008 WL 482469, at *1 (D. Del. February 22, 2008) (quoting Phillips v. County of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). “This does not impose a probability

requirement at the pleading stage, but instead simply calls for enough facts to raise a

reasonable expectation that discovery will reveal evidence of the necessary element.” 

Phillips, 515 F.3d at 232 (quoting Twombly, 550 U.S. at 556 n.3). 

Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of

cases:

To prevent dismissal, all civil complaints must now set out sufficient

factual matter to show that the claim is facially plausible. This then allows

the court to draw the reasonable inference that the defendant is liable for

the alleged misconduct. 

* * *

After Iqbal, when presented with a motion to dismiss for failure to state a

claim, district courts should conduct a two-part analysis. First, the factual

and legal elements of a claim should be separated. The district court

must accept all of the complaint’s well-pleaded facts as true, but may

disregard any legal conclusions. Second, a district court must then

determine whether the facts alleged in the complaint are sufficient to show

that the plaintiff has a plausible claim for relief. In other words, a

complaint must do more than allege the plaintiff’s entitlement to relief. A

complaint has to show such an entitlement with its facts. As the Supreme

Court instructed in Iqbal, where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint

has alleged - but it has not shown - that the pleader is entitled to relief. 

This plausibility requirement will be a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense. 

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 4 of 23
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C. Motion for Summary Judgment 

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall

be granted if the “pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Rule 56(e) further provides that

when a motion for summary judgment is made and supported, “an opposing party may

not rely merely on allegations or denials in its own pleading; rather, its response must –

by affidavits or as otherwise provided in this rule – set out specific facts showing a

genuine issue for trial. If the opposing party does not so respond, summary judgment

should, if appropriate, be entered against that party.”

A district court may grant summary judgment for the defendant when the plaintiff

has failed to present any genuine issues of material fact. See Fed. R. Civ. P. 56(c);

Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n.2 (3d Cir. 1997). The

moving party has the initial burden of proving to the district court the absence of

evidence supporting the non-moving party’s claims. Celotex Corp. v. Catrett, 477 U.S.

317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930

F.2d 1056, 1061 (3d Cir. 1990). Further, “[R]ule 56 enables a party contending that

there is no genuine dispute as to a specific, essential fact <to demand at least one

sworn averment of that fact before the lengthy process of litigation continues.’” Schoch

v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (quoting Lujan v.

National Wildlife Federation, 497 U.S. 871 (1990)). 

The burden then shifts to the non-movant to come forward with specific facts

showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio

Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458,

460-461 (3d Cir. 1989) (the non-movant must present affirmative evidence - more than

a scintilla but less than a preponderance - which supports each element of his claim to

defeat a properly presented motion for summary judgment). The non-moving party

must go beyond the pleadings and show specific facts by affidavit or by information

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 5 of 23
 Although Beeman purported to file a brief in support of his own motion for 2

summary judgment on his third-party claims and counter-claim, the docket reflects that

he never actually filed a separate motion for summary judgment.

6

contained in the filed documents (i.e., depositions, answers to interrogatories and

admissions) to meet his burden of proving elements essential to his claim. Celotex,

477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case

under applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). 

Although the court must resolve any doubts as to the existence of genuine issues of

fact against the party moving for summary judgment, Rule 56 “does not allow a party

resisting the motion to rely merely upon bare assertions, conclusory allegation or

suspicions.” Firemen’s Ins. Company of Newark, N.J. v. DuFresne, 676 F.2d 965, 969

(3d Cir. 1982). Summary judgment is only precluded if the dispute about a material fact

is “genuine,” i.e., if the evidence is such that a reasonable jury could return a verdict for

the non-moving party. Anderson, 477 U.S. at 247-249. 

In this case, Arndt and Pattison filed their motion for summary judgment

supported by affidavits which set forth the relevant factual history. Beeman was

ordered to submit a response to this motion and, on December 18, 2009, he filed a

document containing two subheadings, to wit, “Specific Affidavit of Negative Averment,

Opportunity to Cure, and Counterclaim” and “Brief in Support of [Third Party-] Plaintiff’s

Motion for Summary Judgement” [sic]. As will be explained in more detail below, this 2

document does not raise any genuine dispute as to the facts outlined in the motion for

summary judgment filed by Arndt and Pattison. Accordingly, those facts stand

unrebutted and they form the basis of the Court’s background discussion below.

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 6 of 23
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II. BACKGROUND

This matter arises out of an investigation the IRS conducted relative to Beeman’s

apparent failure to file federal income tax returns and/or pay delinquent federal income

tax liabilities for numerous tax years. Revenue Officer Pattison was assigned to the

case when it was transferred to him on October 19, 2007. Pattison conducted a full

analysis of the matter on October 23, 2007. At the time of receipt into his inventory, the

case involved unfiled income tax returns for the years 2000, 2001, 2002, 2005, and

2006 and unpaid income taxes for the years 1994, 1995, 1996, 1997, 2003, and 2004. 

(Decl. of Edson Pattison, Ex. 1 to Br. in Support of Mot. of the United States for Summ.

Judg. [15-2] at ¶ 3.) At the time the case was assigned to Pattison, the IRS held a lien

against Beeman in the amount of $1,729,371.71. (Id. at ¶ 4.)

 During the course of the following year, Beeman filed the 2005 and 2006 income

tax returns showing taxes owed in the respective amounts of $180.00 and $397.00 and

a 2002 income tax return with a tax balance of $3,462.00. Interest and penalties were

assessed on these unpaid balances. (Pattison Decl. at ¶ 4.) Consequently, as of

October 11, 2008, when Beeman’s 2002 federal income tax return was filed (id.), his

case involved unfiled tax returns for the years 2000 and 2001 and unpaid tax liabilities

for the years 1994-1997 and 2002-2006.

Part of Pattison’s duties as Revenue Officer include the filing of notices of federal

tax liens in order to protect the Government’s interest when taxes are owed and remain

unpaid. (Pattison Decl. at ¶ 5.) To accomplish the task of filing a Notice of Federal Tax

Lien, the IRS agent inputs and/or verifies the relevant information on the Integrated

Collection System and then requests that the lien be filed in the county where the

taxpayer has his or her permanent address. (The lien is also recorded in any county

where the taxpayer owns real estate, if different from the county of residence.) (Id.)

In this case, Beeman’s 2005 and 2006 tax returns were assessed on July 14,

2008 and Beeman was given notice of the assessment and demand for payment that

same day. (Pattison Decl. at ¶ 6.) Following Beeman’s failure to pay his tax liability, a

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 7 of 23
The precise date of the filing of the Notice of Federal Tax Lien relative to tax 3

years 2005 and 2006 is unclear, as Pattison’s declaration appears to give two

conflicting dates for the filing. (See Pattison Decl. at ¶p 5-6.) This discrepancy,

however, is not material to the issues before the Court.

8

Notice of Federal Tax Lien was filed on either July 28 or August 8, 2008. (Id at ¶¶ 5-6.)3

Similarly, after Beeman’s 2002 tax return was assessed on December 1, 2008, notice

of the assessment and demand for payment were given that same day. (Pattison Decl.

at ¶ 6.) Following Beeman’s failure to pay the tax liability, a Notice of Federal Tax Lien

was filed on January 20, 2009. (Id.) 

 As part of the foregoing process, the lien notices were sent to Beeman by the

IRS’s Centralized Lien Unit. (Pattison Decl. at ¶ 6.) The notices were presumably

received by Beeman, inasmuch as they were never returned as undeliverable. (Id. at

¶ 8.)

On February 27, 2009, Beeman’s collection case was reassigned to Revenue

Officer Mary Arndt, who conducted a full analysis on April 16, 2009. At the time of

receipt into her inventory, the case involved unfiled income tax returns for the years

2000 and 2001 and unpaid income taxes for the years 1994-1997 and 2002-2006. 

(Decl. of Mary Arndt, Ex. 2 to Br. in Support of Mot. of the United States for Summ.

Judg. [15-2] at ¶¶ 3, 5.)

Arndt determined that Beeman had submitted a timely Form 12153 (“Request for

a Collection Due Process or Equivalent Hearing under IRC 6320") relative to the Notice

of Federal Tax Lien which had been recorded in Erie County on January 20, 2009 and

which related to tax year 2002. Arndt forwarded this Form 12153 Request to the IRS’s

Appeals Office on April 30, 2009. (Arndt. Decl. at ¶ 6.)

Arndt further determined that Beeman had been issued the Letter 1058 (“Final

Notice of Intent to Levy and Notice of Your Right to a Hearing”), as required under

§§ 6330 and 6331 of the Internal Revenue Code, on August 14, 2007 relative to his tax

liabilities for the years 1994-1997 and 2003-2004. The Letter 1058 relative to tax years

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 8 of 23
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2005 and 2006 had been issued to Beeman on September 2, 2008. The Letter 1058

relative to tax year 2002 was issued to Beeman on April 16, 2009. All notices had been

sent to Beeman’s last address of record and no collection Due Process appeals had

been received as to them. (Arndt Decl. at ¶ 5.) 

On September 14, 2009, Arndt issued a Form 668-W “Notice of Levy on Wages,

Salary and Other Income to GE Client Business Services” so as to attach Beeman’s

pension benefits from his former employer. This levy pertained to the unpaid income

tax liabilities for tax years 1994-1997 and 2003-2006, totaling $2,068,600.43. (Arndt

Decl. at ¶ 8.)

III. DISCUSSION

A. Beeman’s Counterclaim/Third-Party Claim

In his two documents entitled “Specific Affidavit of Negative Averment,

Opportunity to Cure, and Counterclaim” (Docs. [7] and [9]), Beeman challenges the

lawfulness of the lien notice that was recorded in Erie County on January 20, 2009

relative to his 2002 federal income tax liabilities and the lien and/or levy that was

imposed in September of 2009 relative to his tax liabilities for the years 1994-1997 and

2003-2006. Beeman’s sole contention regarding these measures is that they were

unlawful because they were not first approved by a District Court. Arndt and Pattison

contest the sufficiency of this claim on numerous grounds, but I need not address all of

them because, in light of the record before me, Beeman’s allegation of misconduct fails

on its merits.

The IRS’s authority to impose tax liens is established by § 6321 of the Internal

Revenue Code, which provides:

If any person liable to pay any tax neglects or refuses to pay the same

after demand, the amount (including any interest, additional amount,

addition to tax, or assessable penalty, together with any costs that may

accrue in addition thereto) shall be a lien in favor of the United States

upon all property and rights to property, whether real or personal,

belonging to such person.

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 9 of 23
 This is in contrast to the term “Secretary of the Treasury,” which is used 4

elsewhere in the Code and which is defined to mean “the Secretary of the Treasury,

personally, and shall not include any delegate of his.” Id. at § 7701(11)(A).

10

26 U.S.C.A. § 6321. Tax liens thus arise by operation of law, but they become valid

and take priority as against the interests of certain other parties only when notice of the

lien is recorded in accordance with § 6323 of the Code. See 26 U.S.C.A. § 6323(a).

When tax liens are imposed, “the Secretary” – a term statutorily defined to mean

“the Secretary of the Treasury or his delegate,” 26 U.S.C.A. §7701(11)(B) (emphasis

added) – must provide notice of the lien and an opportunity for the taxpayer to have a 4

hearing as set forth in § 6320. Specifically, the Secretary, upon filing notice of the lien,

must give the taxpayer written notice within five business days that the lien notice has

been filed. 26 U.S.C.A. § 6320(a). The notice to the taxpayer must indicate “in simple

and nontechnical terms” (A) the amount of the unpaid tax; (B) the right of the person to

request a hearing within a specified time period; (C) the administrative appeals

available to the taxpayer and the procedures relating to such appeals; and (D) the

relevant statutory provisions and procedures relating to the release of liens on property. 

Id. at § 6320(a)(3).

The authority of the Secretary to impose levies is established by § 6331 of the

Internal Revenue Code, which provides (in relevant part) that:

If any person liable to pay any tax neglects or refuses to pay the same

within 10 days after notice and demand, it shall be lawful for the Secretary

to collect such tax (and such further sum as shall be sufficient to cover the

expenses of the levy) by levy upon all property and rights to property

(except such property as is exempt under section 6334) belonging to such

person or on which there is a lien provided in this chapter for the payment

of such tax. 

26 U.S.C.A. § 6331(a). Before a levy can be made, the Secretary must comply with

certain notice requirements, as detailed in §§ 6330 and 6331 of the Code. See 26

U.S.C. § 6330 and 6331(d).

As I have already noted, the term “Secretary” in these provisions refers to the

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 10 of 23
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Secretary of the Treasury “or his delegate,” 26 U.S.C.A. § 7701(11)(B) (emphasis

added), the latter term being defined as 

... any officer, employee, or agency of the Treasury Department duly

authorized by the Secretary of the Treasury directly, or indirectly by one or

more redelegations of authority, to perform the functions mentioned or

described in the context ...”

26 U.S.C.A. § 7701(12)(A)(i). Significantly for purposes of this case, the Secretary redelegated to employees of the IRS the power to levy property in the hands of a third

party, see IRS Delegation Order 5-3 (1-3) (attached as Ex. 3 to Br. in Supp. of Mot. of

the United States for Summ. Judg. [15-4]), and to sign and issue notices of federal tax

liens, see IRS Delegation Order 5-4 (1-7) (attached as Ex. 4 to Br. in Supp. of Mot. of

the United States for Summ. Judg. [15-5]). 

Here, Beeman’s sole legal basis for challenging the legality of the January 20,

2009 lien notice and the September 14, 2009 levy is that they were “not authorized by a

US District Court Order as is required by the US Code.“ (Specific Affidavit of Negative

Averment, Opportunity to Cure, and Counterclaim ([7] and [9]) at p. 1.) Beeman does

not cite any particular provision of the Internal Revenue Code, or the United States

Code in general, in support of this supposed requirement. To the best of this Court’s

knowledge, Beeman’s theory finds no support in any of the relevant provisions of the

Internal Revenue Code (United States Code title 26, Subtitle F, Chapter 64,

Subchapters C and D) which address “Lien[s] for Taxes” and “Seizure of Property for

Collection of Taxes.” See generally 26 U.S.C. §§ 6320-6327 and 6330-6344. 

Certainly, no requirement of district court pre-authorization can be found in §§ 6320,

6330 and 6331 of the Code. See 26 U.S.C.A. §§ 6320, 6330, 6331.

It may be that, in referring to district court authorization, Beeman is inaccurately

invoking § 6323(f) of the Code, which addresses the location and form for filing lien

notices. According to § 6323(f)(1)(A)(i) and (ii), a notice of lien shall generally be filed

“in one office within the State (or the county, or other governmental subdivision), as

designated by the laws of such State, in which the property subject to the lien is

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 11 of 23
12

situated...“; however, if the State has not by law designated one such office, the notice

of lien shall be filed “[i]n the office of the clerk of the United States district court for the

district in which the property subject to the lien is situated.” Id. at § 6323(f)(1)(B). 

Of course, nothing in this provision requires that a lien notice first be approved by

a federal district court; it requires only that the lien notice be filed with the clerk of the

district court in certain circumstances which do not apply in this case. Beeman is a

resident of Erie County, Pennsylvania, and therefore his residence and personal

property – including intangible property such as pension benefits – are deemed to

reside there as well. See 26 U.S.C.A. § 6323(f)(2) (real property is deemed to be

situated where it is located and personal property, whether tangible or intangible, is

deemed to be situated at the residence of the taxpayer at the time the lien is filed). See

also Fusaro v. C.I.R., No. 13282-01L, 2003 WL 23018836 at *5 (U.S. Tax. Court Dec.

29, 2003) (situs of taxpayer's pension plan, as personal property, for purpose of notice

of federal tax lien, was in state in which taxpayer resided, rather than state where

pension plan was administered). Further, Pennsylvania has adopted the Uniform

Federal Lien Registration Act, 74 Pa. Stat. Ann. §§ 157-1 et seq. (West 2008), which

states that:

Notices of Federal liens upon personal property, whether tangible or

intangible, for obligations payable to the United States and certificates and

notices affecting the liens shall be filed in the office of the prothonotary

of the county where the person against whose interest the lien

applies resides at the time of filing of the notice of lien.

Id. at § 157-3(c) (emphasis added). See also id. at § 157-3(b) (requiring that such liens

upon real property be filed with the prothonotary of the county in which the real property

is situated). Accordingly, since Beeman and his property are located within Erie

County, the Erie County Prothonotary’s office was the proper site for the filing of the tax

lien notices at issue here.

Beeman’s only other argument pertaining to the pending motion for summary

judgment is that the motion should be denied as moot “because the defendants

acquiesced by their failure to respond to my Specific Affidavit of Negative Averment

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 12 of 23
13

filing on October 19, 2009. I do not give the Court permission to dismiss my counter

claims.” (Br. in Supp. of [Third-Party-] Pl.’s Mot. for Summ. Judg. [16] at p. 2.) As to

this point, Beeman appears to be laboring under the misapprehension that Arndt and

Pattison were untimely in responding to his counter-claim/third-party claim against them

and that he is therefore entitled to judgment by default. 

Arndt and Pattison, however, were not untimely in filing their responsive

pleading. Beeman’s first “Specific Affidavit of Negative Averment, Opportunity to Cure,

and Counterclaim” [7] was filed on October 6, 2009. The Federal Rules of Civil

Procedure afford the United States, its agencies, officers and employees sixty (60) days

from the date of service in which to respond to a claim, see Fed. R. Civ. P. 12(a)(2) and

(3), a fact of which Beeman was specifically advised during this Court’s October 16,

2009 show cause hearing. Assuming for the sake of argument that Arndt and Pattison

had been properly served on October 6, 2009, when the first “Specific Affidavit of

Negative Averment, Opportunity to Cure, and Counterclaim” was filed, the sixtieth day

would have fallen on December 5, 2009; however, since December 5 was a Saturday,

the Government had until the following Monday – or December 7, 2009 – in which to

submit its response to Beeman’s claims. See Fed. R. Civ. P. 6(a)(1)(C). Arndt and

Pattison filed their motion for summary judgment on that day and, therefore, their

response was timely. 

This is so notwithstanding the fact that Beeman purported to afford Arndt and

Pattison only eight (8) days to “cure their dishonor” by complying with one of four

specified courses of action predetermined by him, and notwithstanding Beeman’s claim

that failure to do so would result in “default,” which Beeman would consider to be

“complete agreement with all of the terms, provisions, and conditions of this contract,”

and which, in his view, would result in a “self-executing confession of judgment by all

parties, named or unnamed” in the amount of $1,000,000 “per violation, per officer...” 

(Specific Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim” [7] at

pp. 1-2.) Notably, Beeman’s “Counterclaim” within this document purported to impose

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 13 of 23
 The docket reflects that the Second Notice was actually filed twice, the first 5

filing having occurred on November 20, 2009 [11] contemporaneously with the filing of

the First Notice.

 In his “Specific Affidavit of Negative Averment” Beeman indicated that he was 6

seeking “a remedy in Admiralty pursuant to “[t]he Saving to the Suitors Clause” at 28

U.S.C. § 1333(1), which confers on the United States District Courts original, exclusive

jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in

all cases all other remedies to which they are otherwise entitled.” 28 U.S.C.A.

§ 1333(1). Beeman also describes the terms of his “Opportunity to Cure” as “a contract

in admiralty.” (Specific Averment [7] at p. 2.)

14

additional damages in the event the named Defendants failed to pay this judgment – to

wit, damages of $1 million on the 31 day of default, $3 million on the 61 day of st st

default, or $5 million per day on the 91 day of default as well as punitive damages in st

an amount “seven (7) times the original amount of damages.” (Id. at p. 3.). The Court

also notes that, on November 20 and December 1, 2009, Beeman filed (respectively)

his first and second Notices of Fault and Demand for Payment ([10] and [12]), in which 5

he demanded payment in the amount of $7 million “as per agreement.” 

Unfortunately for Beeman, the unilaterally imposed terms of his “Specific

Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim” have no legal

effect and do not form the basis of any legally recognizable contract – much less a

“contract in admiralty,” as he describes it. (Id. at p. 2.) More importantly, they most 6

certainly do not override the provisions of the Federal Rules of Civil Procedure, which

govern the civil proceedings in this Court. Accordingly, the Court will not disregard the

timely motion for summary judgment filed by Arndt and Pattison, not withstanding the

fact that Beeman “do[es] not give the Court permission to dismiss [his] counter claims.” 

(Br. in Supp. of [Third Party] Pl.’s Mot. for Summ. Judg. [16] at p. 2.) 

Here, Arndt and Pattison have made a prima facie showing that they were

entitled and authorized to effectuate the lien notice of January 20, 2009 and the

September 14, 2009 levy and that all proper notices were given. Beeman, on the other

hand, has failed to present any evidence to contradict the facts established by Arndt

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 14 of 23
 These Defendants filed a motion to dismiss the claim against them and 7

Beeman was given until February 18, 2010 to file a response in opposition to the

Defendants’ motion. To date, no response has been filed by Beeman.

15

and Pattison. Fundamentally, Beeman has failed to offer any evidence which could

give rise to a genuine issue of material fact concerning the lawfulness of the January

2009 lien notice and the September 2009 levy. Accordingly, since Beeman has failed

to present any evidence whereby a fact-finder could find that the Government’s lien

and/or levy were unlawful, Beeman has no viable basis to challenge those actions. 

Moreover, even if Beeman had produced evidence of a violation, his only remedy would

be against the United States and, therefore, his claims against Arndt and Pattison

individually would fail for that reason as well. See 26 U.S.C.A. §§ 7432, 7433. 

Beeman has also filed a claim against GE Client Business Services and Keith S.

Sherin, apparently for their action in honoring the levy and garnishing Beeman’s

pension benefits. For the reasons previously discussed, Beeman has failed to raise a 7

genuine issue of fact as to the alleged unlawfulness of the lien and levy. It follows that,

to the extent GE Client Business Services and/or Keith Sherin complied with the terms

of the levy, Beeman lacks any legal basis to challenge these actions as unlawful. In

addition, the Internal Revenue Code specifically discharges from liability any persons

who comply with the terms of an IRS levy:

Any person in possession of (or obligated with respect to) property or

rights to property subject to levy upon which a levy has been made who,

upon demand by the Secretary, surrenders such property or rights to

property (or discharges such obligation) to the Secretary (or who pays a

liability under subsection (d)(1)) shall be discharged from any obligation or

liability to the delinquent taxpayer and any other person with respect to

such property or rights to property arising from such surrender or

payment.

26 U.S.C.A. § 6332(e). Accordingly, Beeman’s claim against GE Client Business

Services and/or Keith Sherin is, on its face, legally insufficient and the Defendants’

motion to dismiss the claim will be granted.

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 15 of 23
16

B. The Complaint to Enforce Summons

Beeman’s case had originally involved unfiled tax returns for the years 2000,

2001, 2002, 2005, and 2006 and, on May 2, 2008, he was served with a summons for

records pertaining to his income during those years. Beeman subsequently filed

returns for years 2002, 2005 and 2006 but did not pay the taxes due. Moreover, while

Beeman had produced certain documentation in response to the summons, the IRS

took the position that he had not fully complied with the terms of the summons as it

pertained to the 2000 and 2001 tax years. Consequently, the summons was referred to

the Department of Justice for enforcement and this civil action was filed. 

When enforcement of an IRS summons is challenged, the Government has the

initial burden of showing: (i) that the summons was issued for a proper purpose, (ii) that

the information sought may be relevant to that purpose; (iii) that the information sought

is not already in possession of the IRS, and (iv) that the government has complied with

the administrative steps required by law with respect to the issuance and service of a

summons. Wheeler v. United States, 459 F. Supp. 2d 399, 401-02 (W.D. Pa. 2006)

(citing United States v. Powell, 379 U.S. 48, 57-58 (1964); Conner v. United States, 434

F.3d 676, 680 (4th Cir.2006); United States v. Rockwell Intern., 897 F.2d 1255, 1262

(3d Cir.1990)). The Government's burden to produce a prima facie showing of good

faith in issuing the summons is only slight or minimal and can be satisfied by the IRS

agent's affidavit averring that the Powell elements have been met. Id. (citing Conner,

434 F.3d at 680; Rockwell Intern., supra, at 1262).

In this case, the United States and Arndt have submitted a copy of the summons

and an affidavit from Revenue Officer Pattison in support of their complaint for

enforcement. Collectively, these exhibits establish that: (i) the IRS has been examining

Beeman’s federal income tax liability for the years 2000, 2001, 2002, 2005 and 2006;

(ii) the summons is relevant to the investigation in that the information sought is needed

in order to properly investigate Beeman’s federal income tax liability for the years in

question, (iii) the information sought is not already in the possession of the IRS, and (iv)

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 16 of 23
17

the IRS issued the summons in compliance with all administrative steps required by the

Internal Revenue Code. (See Affidavit of Ed Pattison, attached as Ex. A to Complaint

to Enforce Internal Revenue Service Summons [1] at ¶¶ 2-4, 9-11; Summons, attached

as Ex. B to Complaint to Enforce Internal Revenue Summons [1].) Accordingly, these

exhibits satisfy the Government's prima facie burden under Powell. See Wheeler, 459

F. Supp. 2d at 402; McGugan v. Katzmar, No. 05-2667(MLC), 2005 WL 3610040 at *3

(D.N.J. Nov.14, 2005); Steiniger v. U.S. Comm'r of Internal Revenue, No. 04-4044,

2005 WL 375653 at *3 (E.D.Pa. Feb.16, 2005); Gaunt v. Internal Revenue Serv., No.

96-0022, 1996 WL 376341 (M.D.Pa. May 1, 1996).

Once the Government satisfies its prima facie burden, the taxpayer retains the

right to challenge the IRS's summons by disproving one or more of the Powell

requirements or by otherwise demonstrating that enforcement of the summons will

result in abuse of the court's process. Rockwell Intern., supra, at 1262; Wheeler, 449

F. Supp. 2d at 402. To do so,

a taxpayer must factually oppose the Government's allegations by

affidavit. Legal conclusions or mere memoranda of law will not suffice. 

See Thornton v. United States, 493 F.2d 164, 167 (3d Cir.1974). In the

absence of such a response by the taxpayer, uncontested allegations in

the Government's petition and affidavit must be accepted as admitted. 

Moreover, if at this stage the taxpayer cannot refute the government's

prima facie Powell showing or cannot factually support a proper

affirmative defense, the district court should dispose of the proceeding on

the papers before it and without an evidentiary hearing. 

United States v. Garden State Nat. Bank, 607 F.2d 61, 71 (3d Cir.1979). See also

Wheeler, 459 F. Supp. 2d at 402; Jackson v. United States, No. Civ. A. 95-2863, 1995

WL 563815 at *2 (E.D. Pa. Sept. 21, 1995). 

Here, Beeman has not asserted under oath specific facts that demonstrate the

existence of either a genuine issue of material fact or a legally sufficient defense to the

summons. Smith v. Fournier, 614 F. Supp. 314, 316 (E.D. Pa.1985). Although this

Court has construed his two filings entitled “Specific Affidavit of Negative Averment,

Opportunity to Cure, and Counterclaim[s]” (Docs. No. [7] and [9]) as responsive

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 17 of 23
18

pleadings, nothing in those documents amounts to factual opposition to the

Government’s allegations or a legally sufficient defense. Accordingly, no evidentiary

hearing was even required. Moutevelis v. United States, 727 F.2d 313, 315 (3rd

Cir.1984); Wheeler, supra, at 402-03. Notably, summons enforcement actions are

intended to be summary in nature. Rockwell Intern., supra, at 1261; Jackson, supra, at

*2. 

Nevertheless, this Court held a show cause hearing on October 16, 2009, at

which time Beeman was afforded an opportunity to defend the Government’s complaint

for enforcement of the summons. Rather than offer any evidence in opposition to the

Government’s Powell showing or which could provide grounds for a proper affirmative

defense to the summons, Beeman insisted on advocating his third-party/counter-claim. 

As Government counsel was summoned to address the Court, the following exchange

with Beeman occurred:

THE COURT: ... Mr. Skirtich, why don’t you come up first and tell me

what you want to say?

MR. BEEMAN: I object.

THE COURT: What are you objecting to?

MR. BEEMAN: I’m the third-party plaintiff, there was no answer to my

counterclaim.

THE COURT: You’re going to get a chance to tell me anything you want. 

But this isn’t your opportunity. You sit down for a minute. As soon as Mr.

Skirtich is done, you’re going to have a chance to come up and tell me whatever

you want, all right?

MR. BEEMAN: I do not give you permission to do that.

THE COURT: Well, I don’t need permission to tell you to sit down. Now,

sit down so Mr. Skirtich can go ahead, and then I’m going to hear everything you

have to say.

MR. BEEMAN: For the record, I object.

THE COURT: All right, your objection is noted.

(Tr. of 10/16/09 Show Cause Hrg. [8] at pp. 2-3.) 

After Government counsel asked for sequestration of any fact witnesses, the

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 18 of 23
 As this Court has explained supra, the Government timely filed its response on 8

December 7, 2009.

19

Court inquired whether Beeman intended to introduce any factual testimony. That

elicited another objection from him. (Id. at p. 3.) The Court then inquired, “Well, do you

have any testimony you want to put on?” to which Beeman replied, “I object. For the

record, I object, there was no response to my counterclaim.” (Id.) Government counsel

then explained that, as per the Federal Rules of Civil Procedure, the Government had

60 days in which to respond to Beeman’s counterclaims and its response was therefore

not yet due. (Id. at pp. 3-4.) 8

Counsel for the Government subsequently addressed the complaint and clarified

that the IRS is seeking only the documentation requested in the summons insofar as it

relates to tax years 2000 and 2001, the Government having previously exhausted

(unsuccessfully) all administrative avenues in an attempt to obtain that information. 

Beeman was then given an opportunity to defend the Government’s request to enforce

the subpoena, but his only substantive response was to assert his claim as a third-party

plaintiff, to wit:

THE COURT: All right. Mr. Beeman, come on up here to the

podium, if you would. I told you I was going to give you an opportunity to

talk and I’m going to do that right now. In the affidavit, which you call a

specific negative averment, you say that – you complain that a notice of

lien was recorded in the Erie County Courthouse, is that right?

MR. BEEMAN: Judge, I’m here as a third-party plaintiff by special

visitation and not appearing generally before the court seeking a remedy –

THE COURT: You’ve got to slow down. See this fellow right here,

he’s the court reporter, he’s trying to get everything down. I read your

pleading, but now you have to answer my question. I’m trying to

understand what the nature of your objections are. And I want to give you

a full opportunity to explain it to me. But, number one, you got to talk

slowly so he can get it down, fair enough. Are you complaining that there

was a lien that was improperly placed upon your assets?

MR. BEEMAN: As is provided by the Saving to the Suitors Clause,

U.S. Code 28-1333 subsection (1). I am standing in my unlimited

commercial liability as a secured party creditor and request that the

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 19 of 23
20

officers of this court do the same. I respectfully request the indulgence of

this court as I am not schooled in law. This is provided by the precedent

set by Haines v. Kerner at 404 U.S. 519.

THE COURT: That was in your pleading, and I read that before

you came to court today. I’m going to switch now to these records that

the Internal Revenue Service is asking for, the tax records of – hang on a

second, I’m not done. The tax records of 2000 and 2001. Do I

understand that you do not want to turn those records over, but can you

tell me what your defense is to that, I’m going to give you an opportunity

to tell me that?

MR. BEEMAN: I do not give you permission to ignore my counterclaim.

THE COURT: Well, they don’t have to answer your counterclaim yet.

MR. BEEMAN: According to the Saving to the Suitors Clause,

United States Code, 28-1333 (1) they do.

THE COURT: Well, there is going to be an answer – are you going

to answer the counterclaim within the time allotted by the rules?

MR. SKIRTICH: Yes, your Honor.

THE COURT: All right, they’re going to answer it. We’re

here on the summons, Mr. Beeman, and I fully appreciate

that you’re not schooled in the law. .... Now, we’re here on

this summons matter. Do I understand that you do not, you

refuse to turn over the records that the government is

requesting?

MR. BEEMAN: I’m a third-party plaintiff –

THE COURT: All right, we’re not going to get anywhere, sit down. ...

(Tr. at pp. 9-11.)

As the foregoing passages demonstrate, Beeman’s only response to the

Government’s complaint to enforce the IRS summons was his attempt to advocate his

third-party claim and counterclaim against Arndt and Pattison. However, I have already

determined, for the reasons previously explained, that those claims cannot survive

summary judgment. In any event, Beeman has made no assertions under oath to

factually rebut any elements of the Government’s Powell showing, and we therefore

must accept the Government’s uncontested allegations as true. United States v.

Garden State Nat. Bank, 607 F.2d at 71. Nor has Beeman asserted any facts which

could make out a legally sufficient defense to the summons. See id. Accordingly, the

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 20 of 23
21

Court will enter an order to enforce the IRS Summons as it pertains to the tax years still

in question. 

IV. CONCLUSION

For the reasons previously discussed herein, this Court will grant the motion for

summary judgment filed by the United States, through Revenue Officers Pattison and

Arndt. The motion to dismiss filed by Third Party Defendants GE Client Business

Services and Keith S. Sherin will also be granted. The Court will enter the relief

requested by the Government in its Complaint to Enforce Internal Revenue Service

Summons. The Government’s pending motion to strike Beeman’s answer to the

complaint will be denied as moot. 

An appropriate order follows.

 

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 21 of 23
22

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA and )

MARY ARNDT, Revenue Officer )

of the Internal Revenue Service, )

)

Plaintiffs, )

)

v. ) Civil Action No. 1:09-cv-158-SJM

)

EBERT G. BEEMAN, )

)

Defendant, )

)

v. )

)

GE CLIENT SERVICE )

BUSINESSES, et al., )

)

Third-party Defendant. )

JUDGMENT ORDER

AND NOW, to wit, this 19 day of February, 2010, for the reasons set forth in the th

accompanying Memorandum Opinion,

IT IS ORDERED that the Motion of the United States for Summary Judgment

[14] be, and hereby is, GRANTED. JUDGMENT is hereby entered in favor of the

United States and Revenue Officers Mary Arndt and Ed Pattison and against

Defendant/ Third Party Plaintiff Ebert G. Beeman as to the claims set forth in the

“Specific Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim.”

IT IS FURTHER ORDERED that the Motion by GE Client Business Services and

Keith S. Sherin to Dismiss All Purported Claims Asserted Against Them by Defendant

Ebert G. Beeman [17] be, and hereby is, GRANTED.

IT IS FURTHER ORDERED that the Plaintiffs’ Motion to Strike Defendant’s

Answer [13] be, and hereby is, DENIED as moot.

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 22 of 23
23

IT IS FURTHER ORDERED that the Defendant, Ebert G. Beeman be, and

hereby is, directed to comply with each and every requirement of the May 2, 2008

Internal Revenue Service Summons insofar as it relates to the calendar years ending

December 31, 2000 and December 31, 2001. Defendant’s compliance shall include his

attendance, testimony, and production of the books, papers, records, or other data

relative to tax years 2000 and 2001 as is required and called for by the terms of the

summons at such time and place as may be fixed by Revenue Officer Arndt or any

other proper officer or employee of the Internal Revenue Service.

IT IS SO ORDERED.

s/ Sean J. McLaughlin 

SEAN J. McLAUGHLIN

United States District Judge

cm: All counsel of record

and

Ebert G. Beeman

12746 Route 19 S

Waterford, PA 16441-6190 

Case 1:09-cv-00158-SJM Document 18 Filed 02/19/10 Page 23 of 23