United States of America v. William S. Tanchak; Linda L. Tanchak

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1967
___________
UNITED STATES OF AMERICA
v.
WILLIAM S. TANCHAK;
LINDA L. TANCHAK,
Appellants
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civ. No. 07-01475)
District Judge: Freda Wolfson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 2, 2009
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: November 5, 2009)
_________
OPINION
_________
PER CURIAM.
Appellants William and Linda Tanchak (“the Tanchaks”) appeal from an
order of the District Court that denied their motion for summary judgment and granted in

-- 1 of 6 --

The Government originally filed its complaint on March 29, 2007. (Dist. Ct. dkt #1.)1
On September 21, 2007, the Magistrate Judge granted the Government’s motion for leave
to file the amended complaint. (Dist. Ct. dkt #10.)
2
part the Government’s motion for summary judgment. Pursuant to the latter, the District
Court ordered that the Government’s tax assessments against William Tanchak be
reduced to judgment, that William Tanchak owe accruing statutory interest on that
judgment, that federal tax liens attach to all of William Tanchak’s property and rights to
property, and that the Tanchaks pay one-half the rental value of their real property to the
Government every month until the judgment is satisfied. We will affirm.
I.
On September 24, 2007, the Government filed an amended complaint
against the Tanchaks, seeking to reduce to judgment unpaid federal income tax
assessments against William Tanchak for the 1989, 1990, 1991, 1993 and 1994 tax years;
as of May 2008, $619,890.05 remained due and owing for those assessments. The1
Government also sought to foreclose its federal tax liens on William Tanchak’s interest in
the real property co-owned by his wife. Specifically, the Government requested that the
real property be sold in accordance with the judicial sale provisions of 28 U.S.C. §§ 2001
and 2002. The Government also sought costs and attorney’s fees incurred in the
commencement and prosecution of the action against the Tanchaks.

-- 2 of 6 --

3
The Government and William Tanchak filed cross-motions for summary
judgment. Tanchak moved on the grounds that the Government’s claims were time-
barred pursuant to 26 U.S.C. § 6502(a)(1), that he had no taxable income during the years
he was assessed deficiencies, that the Government had failed to produce any evidence of
his receiving income during the tax years in question, and that the Government should not
have been permitted to file its amended complaint. For its part, the Government
supported its motion with evidence of the income taxes, interest and penalties in the
amounts shown in the tax assessments against William Tanchak, as well the notices of
deficiency directly sent to him.
The District Court denied William Tanchak’s motion, concluding, among
other things, that the Government had filed its original complaint twenty-two days before
the applicable ten-year statute of limitations had elapsed. As to the Government’s
motion, the District Court concluded that the Government’s tax assessments were entitled
to a presumption of correctness, and that William Tanchak’s “self-serving statement that
he had no taxable income for the 1989, 1990, 1991, 1993 and 1994 tax years” was
insufficient to establish a genuine issue of material fact with regard to the validity or
correctness of those assessments. As a result, the District Court granted the motion
“insofar as it requests judgment on taxes, but [it] decline[d] to award fees and costs and
force a sale of real property.” Instead, the District Court ordered the Tanchaks to “pay
over one-half of the imputed rental value of the real property, in the amount of $1,000.00

-- 3 of 6 --

Like the District Court, we also take note of a Bob/Robin Vinik purporting to be “on2
the brief” for the Tanchaks’ filings, all of which were signed, though, by William
Tanchak only. (Dist. Ct. dkt # 22, Ex. 1); (Appellant’s Br. at 1); (Appellant’s Reply Br. at
1). We take judicial notice of the fact that Mr. Vinik, who does not appear to be an
attorney, has a history of involving himself in law suits to which he is not party, see, e.g.,
De Vesa v. Dorsey, 634 A.2d 493, 495 (N.J. 1993), and strongly caution him against the
unauthorized practice of law, should he be so engaged.
4
every month, to [the Government].” The Tanchaks appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291, and
exercise plenary review of the District Court’s order granting summary judgment. See
Allstate Settlement Corp. v. Rapid Settlements, Ltd., 559 F.3d 164, 169 (3d Cir. 2009).
Summary judgment is proper where “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 a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We
view the facts in the light most favorable to the non-movants, and draw all reasonable
inferences in their favor. See Allstate Settlement Corp., 559 F.3d at 169. We may affirm
the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d
798, 805 (3d Cir. 2000).
III.
In their brief the Tanchaks present two arguments why the District Court2

-- 4 of 6 --

The Tanchaks do not challenge the District Court’s order insofar as it mandates that3
they pay the Government monthly installments of one-half the rental value of their real
property, and therefore this issue is waived. See Laborers’ Int’l Union of N. Am. v.
Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994).
5
erred in partially granting summary judgment for the Government. First, the Tanchaks3
reassert their contention that the Government’s complaint is time-barred pursuant to the
applicable ten-year statute of limitations. Second, the Tanchaks reassert that since
William Tanchak “had no income for the years in question,” he is not liable for the unpaid
income taxes that the Government has attributed to him. For substantially the reasons
provided in the District Court’s opinion, we conclude that both arguments are wholly
lacking in merit.
As to their statute of limitations argument, the Tanchaks contend that the
relevant dates are March 6, 1995 (when the Government allegedly first performed a Form
4340 assessment for William Tanchak), April 6, 1997 (when the Government allegedly
revised its Form 4340), and March 29, 2007 (when the Government filed its complaint).
The Tanchaks argue that the District Court erroneously relied upon the date when the
Form 4340 was allegedly revised in finding that the Government’s complaint was not
time-barred. The Tanchaks’ allegations, however, are at odds with the record, which
demonstrates that the Tanchaks were not assessed a deficiency for unpaid income taxes
until April 21, 1997, and that the March 6, 1995 date refers to the date when the
Government filed a substitute tax return on behalf of William Tanchak pursuant to 26

-- 5 of 6 --

U.S.C. § 6020. (Dist Ct. dkt #24, Ex. 2., pgs. 8-17); see also 26 U.S.C. § 6501(b)(3) (“the
execution of a return by the Secretary pursuant to the authority conferred by [§ 6020]
shall not start the running of the period of limitations on assessment and collection”).
The Tanchaks’ argument concerning William Tanchak’s lack of income
during the relevant tax years is similarly unfounded. In particular, the Tanchaks’ lament
that “[i]t is difficult to document no income,” without more, does not come close to
carrying their “burden of proving, by a preponderance of the evidence that [the IRS’s] ]
assessment is erroneous.” Francisco v. United States, 267 F.3d 303, 319 (3d Cir. 2001).
And as the District Court appropriately noted, the Tanchaks failed to avail themselves of
any apparent means for substantiating their contention. (Dist. Ct. Op. at 10) (“Mr.
Tanchak . . . fails to submit evidence that could controvert the Government’s evidence
that he received income from certain delineated sources, such as unemployment and self-
employment income. Mr. Tanchak offers no records from the State’s Unemployment
Insurance Benefit Claims, for example, to show he never received this form of income”).
Therefore, even viewing the facts in the light most favorable to the Tanchaks, and
drawing all reasonable inferences in their favor, we are convinced that there are no
genuine issues of material fact and that the Government is entitled to judgment as a
matter of law.
Accordingly, we will affirm the order of the District Court.
6.

-- 6 of 6 --