IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Transcription

1 1 1 Exeter Trinity Properties LLC 01 S. th St. Cottonwood, Arizona Mailing: P.O. Box Cottonwood, Arizona Elmer P. Vild, Tax Matters Member Pro Per IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) Civ. No. -cv-0-jws ) Plaintiffs, ) ) v. ) ) VERIFIED ANSWER JOSEPH J. LIPARI, EILEEN H. LIPARI ) AND ) AFFIRMATIVE DEFENSES and ) ) Exeter Trinity Properties, L.L.C., ) ) Defendants. ) ) COMES NOW Elmer P. Vild, Tax Matters Member for Exeter Trinity Properties LLC (referred to subsequently as ETP LLC), proceeding without the assistance of counsel relying on Haines v. Kerner and other U.S. Supreme Court decisions that hold pro se litigants cannot be held to the same standards as an attorney and the lower courts must point out any defects and allow a pro se litigant sufficient time to correct any defects. And, that the pro se litigants pleadings are sufficient to call for an opportunity to be heard. In ANSWER to the COMPLAINT as presented by plaintiff: Page 1 of 0

2 NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, does not have sufficient information to determine whether or not Joseph J. and Eileen H. Lipari have any valid federal tax assessments and/or valid statutory liens placed against them which arose from those alleged assessments upon any real property which could lead to a judgment and/or foreclosure of alleged statutory liens. However, DENIED that are any valid liens against the property described below.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge as to whether this action was commenced pursuant to USC 01 and 0 at the direction of the Attorney General of the United States, and at the request and with the authorization of the Chief Counsel of the Internal Revenue Service, a delegate of the Secretary of the Treasury of the United States, however, additional information regarding this authorization has been requested through Freedom of Information Requests. ETP LLC We also finds it odd that the commencement of this case falls under Title of the Code of Federal Regulations, since the tax that the United States is allegedly attempting to collect falls under Title. ETP LLC is We are currently researching this anomaly.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, do not have sufficient information to determine whether or not this court has proper jurisdiction in this matter. ETP LLC believes that this is yet to be determined. There are disputes over genuine issues of material fact as to the Page of 0

3 commencement of this lawsuit and the inclusion of ETP LLC as a defendant in this case. ETP LLC is the rightful, lawful owner of the property in question and contests the designation of nominee and/or alter-ego, thus, ETP LLC believes that this court does not have jurisdiction over the property that is the subject of this suit. Refusal to produce documents requested under the Freedom of Information Act on the basis that the Internal Revenue Service will only disclose the information to Joseph J. Lipari is an admission that ETP LLC is not the alter ego and/or nominee of Joseph J. Lipari. (See Exhibit Pages -1 and Pages - ) 1 1. ADMIT: Venue is proper in this judicial district pursuant to U.S.C. 11 and 1 because the alleged liabilities that are the subject of this action accrued in this district and because the real property at issue herein is located in this district. IDENTIFICATION OF THE DEFENDANTS. NEITHER ADMIT NOR DENY: ETP, LLC does not know where Defendant Joseph J. Lipari claims residency. He is made a party to this suit because he has alleged unpaid federal tax assessments; however he has no ownership interest in the real property in question. DENIED: ETP LLC is NOT a proper party related to the tax liability of Joseph J. Lipari.. NEITHER ADMIT NOR DENY: ETP, LLC does not know where Defendant Eileen H. Lipari claims residency. She is made a party to this suit because she has Page of 0

4 alleged unpaid federal tax assessments; however she has no ownership interest in the real property in question. DENIED: ETP LLC is NOT a proper party related to the tax liability of Eileen H. Lipari.. ADMIT: ETP LLC was named as a defendant in this case since it is the lawful owner of the property that is the subject in this case and definitely claims an interest in the property. IDENTIFICATION OF THE PROPERTY IN QUESTION 1 1. ADMITTED, as a matter of Public Record: The property which is the subject of this action (hereafter the Property ) is located at 01 S. th Street, Cottonwood, Arizona and bears the following legal description: The West one-half of the West one-half of Lot, VERDE PALISADES, PLAT, according to the plat of record on file in the office of the County Recorder of Yavapai County, Arizona, in Book of Maps, page 1. Except all oil, minerals, ores and metals of every kind, as reserved in Deed recorded in Book, page 1, records of Yavapai County, Arizona. ALLEGATIONS ABOUT THE PURCHASE, AND PURPORTED TRANSFERS, OF THE PROPERTY. ADMITTED, as a matter of Public Record: On or about April,, the Property was purchased by Joseph J. Lipari and Eileen H. Lipari. Page of 0

5 . ADMITTED, as a matter of Public Record: On or about March,, Joseph J. Lipari and Eileen H. Lipari allegedly transferred the Property to the Ponderosa Trust by Warranty Deed. In addition, according to records held by ETP LLC, the property was transferred into trust and the documents were recorded in.. ADMITTED, as a matter of Public Record: On or about September 1,, the Ponderosa Trust allegedly transferred the Property to ETP, LLC by Warranty Deed ADMITTED, as a matter of Public Record: At the time of the alleged transfers described in paragraphs and, above, Donna Chisum was the Trustee of the Ponderosa Trust. 1. ADMITTED, as a matter of Public Record: Donna Chisum, who was also known as Donna Lucille Lundstrom, died on October, 0.. NEITHER ADMIT NOR DENY: No successor trustee for the Ponderosa Trust was named or appointed after Donna Chisum s death. Note: This is a moot point as Ponderosa Trust held no property after.. ADMITTED, as a matter of Public Record: Terry Major is the Statutory Agent of ETP, L.L.C. pursuant to the Arizona Corporation Commission s records. Page of 0

6 ASSESSMENTS MADE AGAINST JOSEPH J. LIPARI AND EILEEN H. LIPARI FOR THEIR AND THROUGH 0 INCOME TAX YEARS. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, on the dates and in the amounts set forth in the complaint, a duly authorized delegate of the Secretary of the Treasury made timely assessments for federal individual income taxes, plus statutory penalties and interest accruing thereto, against Joseph J. Lipari and Eileen H. Lipari ADMITTED, as a matter of Public Record: The tax liabilities and penalties owed by Joseph J. Lipari and Eileen H. Lipari for their tax year which gave rise to the assessments in paragraph were adjudicated in the United States Tax Court. Note: However, Plaintiff submitted to the United States Tax Court a document purported to be the Ponderosa Trust which purportedly transferred property belonging to Joseph J. and Eileen H. Lipari, but in fact was a different Ponderosa Trust belonging to some other, unrelated party. This fact was ignored by the Internal Revenue Service and the Tax Court.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, have no personal knowledge of whether timely notice and demand were properly executed demanding payment of the assessments described in paragraph, above. Page of 0

7 . NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, have no personal knowledge of whether Joseph J. Lipari and Eileen H. Lipari neglected, failed or refused to pay fully the assessments described in paragraph, above, plus accrued interest.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, have no personal knowledge of whether the total amount due and owing on the assessments described in paragraph, above, as of July 1,, was $,., which included interest accrued as provided by law. 1 1 ASSESSMENTS MADE AGAINST JOSEPH J. LIPARI FOR HIS THROUGH INCOME TAX YEARS. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether on the dates and in the amounts set forth in the complaint, a duly authorized delegate of the Secretary of the Treasury made timely assessments for federal individual income taxes, plus statutory penalties and interest accruing thereto, against Joseph J. Lipari.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of the dates by which the alleged assessments had to be made for Joseph J. Lipari s and income tax years nor how they were allegedly tolled based on Collection Due Process rights of which he may have availed himself. Page of 0

8 . NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether timely notice had been given and demand for payment of the assessments described in paragraph, above, had been made.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, despite alleged timely notice and demand, Joseph J. Lipari neglected, failed or refused to pay fully the assessments described in paragraph, above, plus accrued interest NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, since the date of the assessments described in paragraph, above, interest has accrued as provided by law, nor whether the alleged total amount due and owing on the assessments described in paragraph, above, as of July 1,, was $,1.. ASSESSMENTS MADE AGAINST EILEEN H. LIPARI FOR HER THROUGH INCOME TAX YEARS. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, on the dates and in the amounts set forth in the complaint, a duly authorized delegate of the Secretary of the Treasury allegedly made timely assessments for federal individual income taxes, plus statutory penalties and interest accruing thereto, against Eileen H. Lipari. Page of 0

9 . NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, the dates by which the alleged assessments had to be made for Eileen H. Lipari s and income tax years were allegedly tolled based on Collection Due Process rights of which she may have availed herself.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, despite allegedly timely notice having been given and demand for payment of the alleged assessments described in paragraph, above, has been made NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, despite alleged timely notice and demand, Eileen H. Lipari neglected, failed or refused to pay fully the alleged assessments described in paragraph, above, plus accrued interest. 0. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether, since the date of the alleged assessments described in paragraph, above, interest has allegedly accrued as provided by law nor whether the alleged total amount due and owing on the alleged assessments described in paragraph, above, as of July 1,, was $,0.. Page of 0

10 FIRST CLAIM FOR RELIEF: REDUCE ASSESSMENTS MADE AGAINST JOSEPH J. LIPARI AND EILEEN H. LIPARI FOR THEIR AND THROUGH 0 INCOME TAX YEARS TO JUDGMENT 1. ADMITS, DENIES or NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, answers according to the responses in Paragraphs 1 through 0, above NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge whether Joseph J. Lipari and Eileen H. Lipari remain indebted for the balance of the alleged assessments described in paragraph, above, plus accrued interest and statutory additions according to law, less any payments or credits. SECOND CLAIM FOR RELIEF: REDUCE ASSESSMENTS MADE AGAINST JOSEPH J. LIPARI FOR HIS THROUGH INCOME TAX YEARS TO JUDGMENT. ADMITS, DENIES or NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, answers according to the responses in Paragraphs 1 through, above.. NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge whether Joseph J. Lipari remains indebted for the balance of the alleged assessments described in paragraph, above, plus accrued interest and statutory additions according to law, less any payments or credits. Page of 0

11 THIRD CLAIM FOR RELIEF: REDUCE ASSESSMENTS MADE AGAINST EILEEN H. LIPARI FOR HER THROUGH INCOME TAX YEARS TO JUDGMENT. ADMITS, DENIES or NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, answers according to the responses in Paragraphs 1 through, above NEITHER ADMIT NOR DENY: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge whether Eileen H. Lipari remains indebted for the balance of the alleged assessments described in paragraph, above, plus accrued interest and statutory additions according to law, less any payments or credits. FOURTH CLAIM FOR RELIEF: ETP, LLC IS A NOMINEE/ALTER EGO OF JOSEPH J. AND EILEEN H. LIPARI. ADMITS, DENIES or NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, answers according to the responses in Paragraphs 1 through, above.. DENIED: ETP LLC, represented by its members and Statutory Agent, declares that Defendants Joseph J. Lipari and Eileen H. Lipari received adequate consideration for the conveyances of the Property described in paragraphs and, above, and have NOT remained in continuous possession and enjoyment of the Property since they purchased it in April,. Page of 0

12 . DENIED: ETP LLC, represented by its members and Statutory Agent, declares Defendants Joseph J. Lipari and Eileen H. Lipari have NOT lived in the Property continuously since the conveyances thereof described in paragraphs and and have NOT enjoyed the benefits of living in the property to the exclusion of all others. 0. DENIED: ETP LLC, represented by its members and Statutory Agent, declares that it holds lawful and clear title to the Property described in paragraph, above, and that it is NOT a nominee and/or alter ego of Defendants Joseph J. Lipari and Eileen H. Lipari DENIED: ETP LLC, represented by its members and Statutory Agent, believes the Notices of Federal Tax Lien (NFTLs) which have been recorded against the property were wrongfully and erroneously recorded and that the Property has been encumbered with wrongful and erroneous liens for the unpaid alleged tax assessments described in paragraphs, and, above. FIFTH CLAIM FOR RELIEF: TO SET ASIDE FRAUDULENT CONVEYANCES. ADMITS, DENIES or NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, answers according to the responses in Paragraphs 1 through 1, above. Page 1 of 0

13 1. DENIED: ETP LLC, represented by its members and Statutory Agent, declares the Property transfers described in paragraphs and, above, constituted legitimate, lawful transfers and do not fall under the Arizona Uniform Fraudulent Transfer Act, A.R.S. -01, et seq, because the transfers were NOT made with the actual intent to hinder, delay, or defraud the United States of present value, and future lawful taxes. These conveyances must NOT be set aside.. DENIED: ETP LLC, represented by its members and Statutory Agent, declares Joseph J. Lipari and Eileen H. Lipari are NOT the owners of the Property due to legitimate, lawful conveyances described in paragraphs and, above. 1 SIXTH CLAIM FOR RELIEF: TO FORECLOSE FEDERAL TAX LIENS AGAINST THE PROPERTY. ADMITS, DENIES or NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, answers according to the responses in Paragraphs 1 through, above.. DENIED: ETP LLC, represented by its members and Statutory Agent, have no personal knowledge of the validity of the alleged assessments set forth in paragraphs, and above, whether valid liens arose in favor of the United States as to all property and rights to property of Joseph J. Lipari and Eileen H. Lipari. Note: However, Joseph J. Lipari and Eileen H. Lipari have NO Page 1 of 0

14 1 1 OWNERSHIP OR BENEFICIAL INTEREST in the Property described in paragraph, above. Note: ETP LLC also finds it odd that according to the Parallel Table of Authorities for the Code of Federal Regulations, U.S.C. falls under Title, since the tax that the United States is allegedly attempting to collect falls under Title. ETP LLC is researching this anomaly and reserve our right to object upon discovery.. NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, declares that, even though the tax liens arising from the alleged assessments described in paragraph, and appear to continue to attach to the Property, these NTFLs were based on wrongful and erroneous information and must be removed.. NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether or not on or about December, 01, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a Notice of Federal Tax Lien (NFTL) in the name of Joseph Lapaeri (sic) with respect to the income tax and related assessments made against Joseph J. Lapari for his, and income tax years and whether this NFTL attached to all property and rights to property of Joseph J. Lipari. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was Page of 0

15 wrongfully and erroneously recorded as Joseph J. Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether or not on or about December, 01, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Eileen Lipari with respect to the income tax and related assessments made against her for her, and income tax years and whether this NFTL attached to all property and rights to property of Eileen H. Lipari. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Eileen H. Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property. 0. NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether or not on or about December, 01, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph Lapaeri (sic) with respect to the income tax and related assessments made against Joseph J. Lipari for his income tax year and whether this NFTL attached to all property and rights to property of Joseph J. Lipari. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. Page of 0

16 Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether or not on or about March, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph Lapari with respect to the income tax and related assessments made against him for his, and income tax years and whether this NFTL attached to all property and rights to property of Joseph J. Lipari. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property.. NEITHER ADMITS NOR DENIES: ETP LLC, represented by its members and Statutory Agent, has no personal knowledge of whether or not on or about May, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph Lapari with respect to the income tax and related assessments made against him for his income tax year and whether this NFTL attached to all property and rights to property of Joseph J. Lipari. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was based wrongfully and erroneously recorded as Joseph J. Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property. Page of 0

17 . ADMITS, as a matter of Public Record, that on or about August, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of ETP, LLC, as Nominee, Transferee, and/or Alter Ego of Joseph Lipari with respect to the income tax and related assessments made against him for his,, and income tax years. However, DENIES that ETP LLC is the Nominee, Transferee, and/or Alter Ego of Joseph Lipari and that the NFTL was valid and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property ADMITS, as a matter of Public Record, that on or about August, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of ETP, LLC, as Nominee, Transferee, and/or Alter Ego of Eileen Lipari with respect to the income tax and related assessments made against her for her, and income tax years. However, DENIES that ETP LLC is the Nominee, Transferee, and/or Alter Ego of Eileen Lipari and that the NFTL was valid and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Eileen Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property.. ADMITS, as a matter of Public Record, that on or about August, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph Lapari with respect to Page of 0

18 the income tax and related assessments made against him for his income tax year. However, DENIES that the NFTL was valid and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property ADMITS, as a matter of Public Record, that on or about August, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Eileen Lapari with respect to the income tax and related assessments made against her for her income tax year. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Eileen Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property.. ADMITS, as a matter of Public Record, that on or about January, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph J. and Eileen H. Lipari with respect to the income tax and related assessments made against them for their,, 01, 0 and 0 income tax years. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. and Eileen H. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property. Page of 0

19 . ADMITS, as a matter of Public Record, that on or about August, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph J. and Eileen H. Lipari with respect to the income tax and related assessments made against them for their income tax year. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. and Eileen H. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property ADMITS, as a matter of Public Record, that on or about September, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph J. And Eileen H. Lipari with respect to the income tax and related assessments made against them for their income tax year. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. and Eileen H. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property. 0. ADMITS, as a matter of Public Record, that on or about October, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph J. And Eileen H. Lipari with respect to the income tax and related assessments made against them for their 00 and 0 income tax years. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was Page of 0

20 wrongfully and erroneously recorded as Joseph J. and Eileen H. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property ADMITS, as a matter of Public Record, that on January, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of ETP, LLC, as Nominee, Transferee, and/or Alter Ego of Joseph J. and Eileen H. Lipari with respect to the income tax and related assessments made against them for their,, 00, 01, 0, 0 and 0 income tax years. However, DENIES that ETP LLC is the Nominee, Transferee and/or Alter Ego of Joseph J. and Eileen H. Lipari and DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. and Eileen H. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property.. ADMITS, as a matter of Public Record, that on or about January, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of ETP, LLC, as Nominee, Transferee, and/or Alter Ego of Joseph Lipari with respect to the income tax and related assessments made against him for his income tax year and the IRC Section penalty assessment made against him for his income tax year. However, DENIES that ETP LLC is the Nominee, Transferee and/or Alter Ego of Joseph Lipari and DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously Page of 0

21 recorded as Joseph Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property ADMITS, as a matter of Public Record, that on or about November, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of ETP, LLC, as Nominee/Alter Ego of Eileen H. Lipari with respect to the income tax and related assessments made against her for her income tax year. However, DENIES that ETP LLC is the Nominee, Transferee and/or Alter Ego of Eileen H. Lipari and DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Eileen H. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property.. ADMITS, as a matter of Public Record, that on or about November, 0, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of ETP, LLC, as Nominee/Alter Ego of Eileen H. Lipari with respect to the income tax and related assessments made against her for her income tax year. However, DENIES that ETP LLC is the Nominee, Transferee and/or Alter Ego of Eileen H. Lipari and DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Eileen H. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property. Page of 0

22 . ADMITS, as a matter of Public Record, that on or about July,, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of Joseph Lipari with respect to the income tax and related assessments made against him for his income tax year. However, DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph Lipari has NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property ADMITS, as a matter of Public Record, that on or about July,, a delegate of the Secretary of the Treasury recorded in the County Recorder s Office for Yavapai County, Arizona a NFTL in the name of ETP, LLC, as Nominee/Alter Ego of Joseph J. Lipari with respect to the income tax and related assessments made against him for his income tax year. However, DENIES that ETP LLC is the Nominee, Transferee and/or Alter Ego of Joseph J. Lipari and DENIES that the NFTL was valid as it relates to the subject Property and ETP LLC believes that this NFTL was wrongfully and erroneously recorded as Joseph J. Lipari had NO OWNERSHIP OR BENEFICIAL INTEREST in the subject Property. Page of 0

23 1 1 AFFIRMATIVE DEFENSES (Federal Rules of Civil Procedure, Rule (c)) Pursuant to the Federal Rules of Civil Procedure, Rule (c), the defendant, ETP LLC, hereby asserts the following affirmative defenses: Affirmative Defense #1 Fraudulent Conveyance There are no facts in evidence to prove that the conveyance of the property was fraudulent. The conveyance was made in good faith. When Joseph J. and Eileen H. Lipari conveyed the property into trust in they were solvent. Thus, Plaintiff alleges a fact not in evidence, in spite of attempts on the part of ETP LLC to obtain responses to requests for the information. (One example, already referenced was Exhibit Pages -1 and Pages -.) Affirmative Defense # Estoppel Based upon the responses from the Internal Revenue Service received pursuant to the Freedom of Information requests that were made on behalf of ETP LLC by the Tax Matters Member and Statutory Agent, the IRS is estopped from referring to ETP LLC as the nominee and/or alter ego of Joseph J. and Eileen H. Lipari. The refusal to answer these requests, already provided as Exhibit Pages - 1 and Pages -, indicates that the IRS considers ETP LLC a separate entity, thus ETP LLC cannot be the nominee and/or alter ego of Joseph J. and/or Eileen H. Lipari. Affirmative Defense # No Failure of Consideration At the time of the conveyance of the property into the Ponderosa Trust, adequate consideration was provided to Joseph J. and Eileen H. Lipari to Page of 0

24 1 1 consummate the contract. The contract was a valid, binding contract, and the property was lawfully, legally, correctly deeded to the Ponderosa Trust in by Warranty Deed. Affirmative Defense # Transfer was not an Illegality The transfer of the property into trust was a perfectly legal, lawful exchange of the property to the trust for adequate and valuable consideration. Affirmative Defense # Statute of frauds The contract in the form of a trust that Joseph J. and Eileen H. Lipari entered into with Jimmy C. Chisum in the creation of the Pondersa Trust to convey the subject property satisfies the Statute of Frauds. The Statute of Frauds was satisfied when the contract to convey was evidenced by a writing or writings containing the essential terms of the agreement and signed by the parties. Affirmative Defense # Statute of Limitations The statute of limitations for raising the issue of fraudulent conveyance is well past time. The original conveyance took place in. It has been seventeen years since the property was placed into trust. To raise this issue now is without merit. The Plaintiff has provided only allegations without any facts in evidence to back up their claim. The claim is specious. Please note the following Federal and Arizona statutes as to the Statute of Limitations to bring a Fraudulent Transfer claim: USC 0: Remedies of the United States Page of 0 (b) Limitation. - A claim for relief with respect to a fraudulent transfer or obligation under this subchapter is extinguished unless action is brought

25 1 1 (1) under section 0(b)(1)(A) within years after the transfer was made or the obligation was incurred or, if later, within years after the transfer or obligation was or could reasonably have been discovered by the claimant; (Emphasis added) Arizona Revised Statutes: -0. Extinguishment of claim for relief A claim for relief with respect to a fraudulent transfer or obligation under this article is extinguished unless an action is brought: 1. Under section -0, subsection A, paragraph 1 within four years after the transfer was made or the obligation was incurred or, if later, within one year after the fraudulent nature of the transfer or obligation was or through the exercise of reasonable diligence could have been discovered by the claimant. (Emphasis added). Under section -0, subsection A, paragraph or section -0, within four years after the transfer was made or the obligation was incurred. As can plainly be seen from both Federal and State Statutes, the Plaintiff is well beyond the time to make the claim of fraudulent transfer. Affirmative Defense # Waiver The Internal Revenue Service waived their right to claim fraudulent conveyance by passing the time specified in the Statute of Limitations. Exeter Trinity Properties LLC must be recognized as the lawful, legal owner of the subject property. Joseph J. and Eileen H. Lipari have no remaining interest in the property and have no membership or control over Exeter Trinity Properties LLC. Affirmative Defense # Breach of Contract (Failure of the Plaintiff to exhaust their administrative remedy) On January, 0, ETP LLC was issued Notices of Federal Tax Lien Filing Nominee or Alter Ego. Two were issued, one for Joseph J. Lipari and one for Eileen H. Lipari. (See Exhibit Pages 1 - ). In this notice, ETP LLC was Page of 0

26 1 1 informed that ETP LLC had a right to appeal this decision. On February, 0, Phillip O Neil, a.k.a. Elmer P. Vild, requested a hearing regarding the erroneous notice. (See Exhibit Pages - 1). No meeting was ever provided. There was an exchange of correspondence regarding this request. (See Exhibit Pages - ) On July,, ETP LLC was issued a Notice of Federal Tax Lien Filing Nominee or Alter-Ego. (See Exhibit Pages - ). In this notice, ETP LLC was informed that ETP LLC had a right to appeal this decision. On July,, Phillip O Neil, a.k.a. Elmer P. Vild, requested a hearing regarding the erroneous notice. (See Exhibit Page ). On August,, a response was sent by Debra Vahe, Revenue Officer, setting a meeting under the Collection Appeal Rights procedures. Mr. Vild was informed, in that letter, that the meeting would be held on August 0, at :00 PM at Ms. Vahe s office in Mesa, Arizona. A Mr. Smith, Ms. Vahe s manager, would be attending via teleconference from Salt Lake City, Utah. (See Exhibit Pages - ). On August 1,, Mr. Vild informed Ms. Vahe that ETP LLC could not be both a nominee and an alter ego at the same time and to inform him which applied. Mr. Vild also requested all documentation which was being used to support the theory of the IRS so he could have an opportunity to refute such claims. (See Exhibit Page ). On August,, Ms. Vahe informs Mr. Vild the NTFL lien had both on it and that he should be prepared to defend both theories at the conference. (See Exhibit Page ). On August, Mr. Vild informs Ms. Vahe that the terms are mutually exclusive and that it is the law that counts and not what is on the lien and Page of 0

27 1 1 that he needs the information requested to properly prepare for the conference. (See Exhibit Page - ). On August,, Ms. Vahe called Mr. Vild from the house on the property in question at 01 S. th Street, Cottonwood, Arizona and inquired about the whereabouts of the Joseph and Eileen Lipari. While talking to Ms. Vahe, Mr. Vild informed her that her own IRS policies and regulations state that a nominee and alter ego are mutually exclusive. She agreed and stated she would get back to Mr. Vild on the conference meeting. On September,, Ms. Vahe telephoned Mr. Vild and stated that because the case has been referred to the Department of Justice that they have control of the case now and she could not reach a resolution regarding the case. If the meeting were held I would only be giving IRS information and they could not resolve the situation. Ms. Vahe stated that she could not speak to me any more regarding the issues and I must only speak to Mr. Duffy the attorney. I stated the purpose for the conference was for me to dispute whatever information the IRS had so I saw no reason for the meeting if the IRS was not going to give me anything. Ms. Vahe stated that she would send me a letter covering what we had talked about, but as of late yesterday, September, nothing had come by mail. An examination of the Docket for this case shows that the complaint was filed with the court on August,. Revenue Officer, Debra Vahe, called Mr. Vild to inform him that she cannot speak with Mr. Vild regarding the case on September,. The filing of this case was premature and violated the Due Process Rights of ETP LLC through the denial of the conference. Page of 0

28 This was a breach of contract resulting in the denial of due process to ETP LLC and placing ETP LLC under the added expense and effort in defending our position in this court proceeding when the proper administrative process could have averted the need for court action. 1 1 Affirmative Defense # Laches ETP LLC declares that Plaintiff is barred from their claims against defendant, ETP LLC, through the doctrine of Laches. Had Plaintiff exercised their claims against Joseph J. and Eileen H. Lipari much earlier, the claimed damages would not be as great. The delay in action for the past seventeen years should be enough to bar plaintiff from any claims against ETP LLC in this case. Plaintiff comes waltzing in at the eleventh hour when it is now too late to grant the relief sough without causing great harm to this defendant, ETP LLC, that could have been avoided by making these claims years ago! Affirmative Defense # Incorporates all Defenses As to whether other affirmative defenses apply in this instant case, ETP LLC is awaiting the Plaintiff s response to the Motion for More Definite Statement. ETP LLC may be more fully prepared to provide additional defenses at that time. Arizona Rules of Civil Procedure, Rule (d): Defendant, ETP LLC, incorporates herein by reference all affirmative defenses set forth in Rule and such other affirmative defenses that may become available to defendants through further discovery in this matter. Page of 0

29 The Plaintiff s Complaint consists of boiler plate non-specific general allegations where the Plaintiff does not provide any specific facts of wrong doing. The lawsuit is nothing more than a fishing trip. WHEREFORE, defendant, ETP LLC, respectfully prays plaintiff be denied the relief they request as it pertains to the Property owned by ETP LLC and that ETP LLC be dismissed from this suit with prejudice and be reimbursed for attorney fees and costs of litigation and other such and further relief as the Court deems just and proper. 1 1 DATED this th day of September,. Elmer P. Vild, Tax Matters Member, ETP LLC, Pro Per Page of 0

30 1 1 CERTIFICATE OF SERVICE Original for the Clerk of the Court and one copy for the Honorable John W. Sedwick mailed this th day of September, via first class mail to: Clerk of the Court Sandra Day O Connor U.S. Courthouse SPC 1 01 W. Washington Street, Suite Phoenix, AZ 00- Copies mailed this th day of September, via first class mail to: CHARLES M. DUFFY Trial Attorney, Tax Division U.S. Department of Justice P.O. Box Ben Franklin Station Washington, DC charles.m.duffy@usdoj.gov DENNIS K. BURKE United States Attorney District of Arizona Two Renaissance Square 0 North Central, Suite Phoenix, Arizona 00-0 Copies mailed to the only address ETP LLC has for forwarding mail: Joseph J. Lipari c/o Ms. Marie Henke Johnson Hill Dr. Waynesville, NC Eileen H. Lipari c/o Ms. Marie Henke Johnson Hill Dr. Waynesville, NC Elmer P. Vild, Trustee & Tax Matters Member of ETP, L.L.C. Page 0 of 0