plaintiff signed a statement declaring "I do not wish to live permanently in the U.S." Id. Plaintiff counters that his green card was confiscated involuntarily, but agrees that the card was not properly held by him at the time it was confiscated. Plaintiff alleges that at the time he applied for and received a green card in 1982, he did intend to reside in the United States, but intervening events in Sweden--namely, the buy-out of his partners in a hotel venture there--caused him to change his plans and remain a resident of Sweden until he moved to the United Kingdom in 1985. Affidavit of Magnus Lindholm at P 8. Plaintiff's assertion that he was not a resident during the tax years at issue is supported by unimpeached documents indicating that he was in the United States in 1985 for a total of only seventy-eight days. Plaintiff's Supplement in Support of Abatement of Jeopardy Assessment, Exhibit N.6.
This Court need not conclusively decide whether plaintiff was ever a resident of the United States. Rather, for purposes of evaluating the risk of flight, it is clear from the evidence that plaintiff is, and always has been, a businessman who travels frequently. The IRS is placed at no greater risk because plaintiff lost his green card than if he had never had one, since it appears that at all times relevant to this inquiry, plaintiff frequently was out of the United States, and his possession of a green card did not make him more accessible to the IRS.
The IRS also argues that plaintiff presents a risk of placing his property beyond the reach of the government. In support of its position, the IRS refers to the complex corporate structure through which plaintiff maintains most of his assets, and by which plaintiff avoids ownership in his own name of virtually all his assets. See Defendants' Motion at 20-24. Most importantly, though, the IRS relies upon the findings of a United States Magistrate Judge in the case Bergesen d.y. A/S v. Lindholm, 760 F. Supp. 976 (D. Conn. 1991).
Bergesen involved a creditor's motion for prejudgment attachment of the debtor's assets in a contract dispute. The Magistrate Judge allowed the prejudgment attachment finding, inter alia, that Lindholm's assets were arranged in a manner that might prevent recovery by a creditor. Id. at 988-89. In the case at bar, the IRS relies upon the findings in Bergesen to conclude that plaintiff might thwart any effort to recover taxes assessed against him. In fact, the creditor in Bergesen was not thwarted by Lindholm's financial arrangement. The case was settled by the parties prior to trial, and, allegedly, no payment from Lindholm to Bergesen was ever required. Complaint for Abatement of Jeopardy Assessment and Related Jeopardy Levies at 19-20. Thus, despite the complexity with which plaintiff arranged his assets, he apparently did not "hide" them, but negotiated a mutually acceptable settlement with his creditors. Indeed, the IRS points to no instances in which plaintiff has either defaulted on a debt or hidden from creditors.
The Court notes, without making any determinations, that plaintiff has at least plausible challenges against the very assessment of tax levied by the IRS. For example, whether plaintiff was a resident of the United States during 1985 through 1987 appears genuinely in dispute. Plaintiff also raises substantial challenges to his tax liability under the U.S. Tax Code assuming he is found to have been a U.S. resident in 1985 to 1987. Therefore, this is not a case of clear liability on the part of the taxpayer. Furthermore, plaintiff has not been shown to present the type of risk that justifies the extraordinary measure of a jeopardy assessment. The IRS has failed to demonstrate that its imposition of a jeopardy assessment in this case is reasonable.
ACCORDINGLY, it is, by the Court, this eighth day of October, 1992
ORDERED that the United States Motion to Dismiss or Transfer shall be, and the same hereby is, DENIED; and it is
FURTHER ORDERED that plaintiff's prayer for abatement of the jeopardy assessment against him shall be, and the same hereby is, GRANTED. The IRS shall immediately abate the jeopardy assessment in its entirety, including any and all levies made pursuant to the jeopardy assessment.
GEORGE H. REVERCOMB
United States District Judge