United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Motion for Summary Judgment
(Doc. 29) filed on September 25, 2019. Defendants pro
se filed a Response in Opposition (Doc. 32), Declaration
in Support (Doc. 33), and Counterstatement of Genuine Issues
of Fact (Doc. 34), requesting relief under Fed.R.Civ.P.
56(d). Plaintiff Replied (Doc. 39), and Defendants
Sur-replied (Doc. 43). For the reasons set forth below, the
Motion for Summary Judgment is denied without prejudice and
Defendants' Rule 56(d) request is granted.
United States brings this tax case to reduce to judgment
federal income tax assessments made against
Defendants-taxpayers Dennis and Susan Oury (husband and
wife). The Government seeks judgment as to tax years
2004-2014 and 2016, and in its Motion for Summary Judgment,
the United States lists the amounts owed for each tax year,
as well as the assessment dates (Doc. 29), which is supported
by the Declaration (and attached exhibits) of Steven B.
Sillars (“Sillars Declaration”), a Revenue
Officer with the Internal Revenue Service (IRS). (Doc. 29-2,
at ¶ 4). A delegate of the Secretary of the Treasury
properly gave notice of the taxes to Defendants and made
demand for payment. (Doc. 29-2, at ¶ 7). As of September
17, 2019, Defendants owed the United States $1, 643, 114.48
in assessments, plus penalties and interest that continue to
accrue. (Doc. 29-2, at ¶ 7). Despite notices of the
assessments and demands for payment, Defendants have failed
to fully pay the assessments. This suit was filed on March
about May 3, 2018, Defendants requested an installment
agreement from the IRS for all years at issue in this case,
but that request was rejected by the United States on or
about September 19, 2018. (Doc. 29-2, at ¶¶ 8-9).
The United States moves for summary judgment, arguing that
there is no dispute that the outstanding taxes are due.
Defendants argue under Fed.R.Civ.P. 56(d) that they
cannot adequately respond because discovery has not yet been
conducted, submitting the Declaration of Dennis J. Oury (Doc.
33) in support. The discovery deadline is March 31, 2020.
judgment is appropriate only when the Court is satisfied that
“there is no genuine issue as to any material
fact” and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). A genuine issue of
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). To defeat summary judgment, the
non-movant must “go beyond the pleadings, and present
affirmative evidence to show that a genuine issue of material
facts exists.” Porter v. Ray, 461 F.3d 1315,
1320 (11th Cir. 2006).
reviewing a motion for summary judgment, the Court views the
evidence and all reasonable inferences drawn from it in the
light most favorable to the non-movant. See Battle v. Bd.
of Regents, 468 F.3d 755, 759 (11th Cir. 2006). But
“[a] court need not permit a case to go to a
jury…when the inferences that are drawn from the
evidence, and upon which the non-movant relies, are
‘implausible.'” Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996)
56(d) expressly provides that the Court may deny a motion for
summary judgment if a non-movant shows by affidavit that
“it cannot present essential facts to justify its
opposition.” Fed.R.Civ.P. 56(d). That Rule provides
that “[i]f a nonmovant shows by affidavit or
declaration that ... it cannot present facts essential to
justify its opposition” to summary judgment, “the
court may (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.”
Entry of summary judgment before the nonmoving party has had
time to conduct discovery constitutes reversible error.
See WSB-TV v. Lee, 842 F.2d 1266, 1269
(11th Cir. 1988). A party has the right to challenge the
factual evidence presented by the moving party by conducting
sufficient discovery to determine whether it may furnish
opposing affidavits. Snook v. Trust Co. of Georgia Bank
of Savannah, N.A., 859 F.2d 865, 870 (11th Cir. 1988).
Ruling on the merits of a case in which a motion for summary
judgment has been prematurely filed would frustrate the
non-movant's right to investigate factually. Blumel
v. Mylander, 919 F.Supp. 423, 429 (M.D. Fla. 1996). The
Eleventh Circuit has cautioned that “summary judgment
may only be decided upon an adequate record.”
Snook, 859 F.2d at 870 (quoting WSB-TV, 842
F.2d at 1269).
‘assessment' is a procedure in which the IRS
records the liability of the taxpayer in IRS files.”
Behren v. United States, 82 F.3d 1017, 1018 n.1
(11th Cir. 1996) (citing 26 U.S.C. § 6203; 26 C.F.R.
§ 301.6203-1)). “It is well established in the tax
law that an assessment is entitled to a legal presumption of
correctness - a presumption that can help the Government
prove its case against a taxpayer in court.” United
States v. Fior D'Italia, Inc., 536 U.S. 238, 242
(2002) (citing United States v. Janis, 428 U.S. 433,
440-41 (1976)); Suarez v. United States, 582 F.2d
1007, 1010 & n. 3 (5th Cir. 1978).“Unquestionably the burden of proof
is on the taxpayer to show that the commissioner's
determination is invalid.” Helvering v.
Taylor, 293 U.S. 507, 515 (1935).
Ourys argue that they have not had the opportunity to gather
any evidence to rebut or overcome any of the amounts due and
the timeliness of the 2004 assessment. Specifically,
Defendants state discovery is needed regarding the
computation of the amount of interest and penalties on the
tax liabilities because information as to how the amounts due
were calculated has not been provided. Defendants need this
information to determine whether the United States has
followed its statutory and regulatory requirements.
Defendants further states that discovery is required as to
whether Defendants had an installment agreement with the
United States that could render the 2004 assessment untimely.
United States responds that the Eleventh Circuit recently
stated that a party “may not simply rely on vague
assertions that additional discovery will produce needed, but
unspecified facts, ” but “must specifically
demonstrate how postponement of a ruling on the motion will
enable him, by discovery or other means, to rebut the
movant's showing of the absence of a genuine issue of
fact.” City of Miami Gardens v. Wells Fargo &
Co., 931 F.3d 1274, 1287 (11th Cir. 2019) (quoting
Reflectone, Inc. v. Farrand Optical Co., 862 F.2d
841, 843 (11th Cir. 1989)). In this case, the United States
believes that Defendant has not satisfied this standard as to
the amount of liability, nor the timeliness of the 2004
Court finds that Defendants have at least satisfied the
standard set forth in City of Miami Gardens as to
whether the 2004 assessment was timely. The United States
generally has 10 years from the date of an assessment to
bring a proceeding in court to collect an unpaid tax. 26
U.S.C. § 6502(a)(1). The United States filed its
Complaint on March 20, 2019. (Doc. 1). Of the assessments
identified in the Complaint, only the assessment made on
October 13, 2008 for 2004 occurred before March 20, 2009.
However, a taxpayer's offer for an installment agreement
that is ultimately rejected prohibits the IRS from levying
property and suspends the running of the ten-year period for
so long as the offer is pending and for 30 days following its
rejection. See26 U.S.C. § 6331(k)(2) and
(k)(3)(B) (applying the suspension of the statute of
limitations found in 6331(i)(5) to rejected offers for
installment agreements). Here, the United States asserts that
Defendants had a “pending” request for an
installment agreement for all of the years at issue in this
case - including 2004 - from May 3, 2018 until its rejection