BRETT L. TOLMAN, (8821), United States Attorney S. MARK BARNES, (5034), Special Assistant U.S.

Attorney Attorneys for the United States of America 150 Social Hall Avenue, Suite 313A Salt Lake City, Utah 84111-1504 Telephone:(801) 799-6623



) ) ) Bankr. No. 08-20225 ) Chapter 11 ) Judge: Judith A. Boulden ) ) [Filed Electronically] )


UNITED STATES OF AMERICA, on behalf of the Internal Revenue Service, moves this Court pursuant to 11 U.S.C. ' 362(d) and B.R. 4001, for an order to modify the automatic stay to allow the Internal Revenue Service to offset pre-petition tax overpayment for employment taxes for the quarter ended September 30, 2006 against pre-petition tax liabilities of the debtors. IN SUPPORT THEREOF the Internal Revenue Service states: 1. Debtors filed a bankruptcy petition seeking relief under

Chapter 11 on January 15, 2008.

Filed: 03/26/08


Debtor filed Form 941 (Employer’s Quarterly Federal Tax

Return) for the quarter ended September 30, 2006. Debtor attached a check to the return in the amount of $234,422.91. 3. IRS records indicate that this was a duplicate payment. This amount had already been paid by the debtor in the form of deposits made by the debtor for that quarter. 4. On November 13, 2006, the IRS sent a refund check in the amount of $234,422.91 to the debtor to refund the overpayment. 5. The debtor failed to process the refund check, which has now been canceled and the IRS is still in possession of the $234,422.91 overpayment. 3. The overpayment was made for the period ended September

30, 2006, and paid to the IRS before November 13, 2006, which date is more than a year prior to the filing of the debtor’s bankruptcy petition. overpayment. 6. The Internal Revenue Service has prepetition claims The secured amount, which is secured by Thus, the overpayment is a prepetition

totaling $5,476,269.35.

virtue of the overpayment amount set forth above, is $234,422.91. The priority claim is in the amount of $5,241,846.44, and there


is no general unsecured claim asserted by the Internal Revenue Service. 7. The Internal Revenue Service is prohibited from

offsetting the Debtor’s September 30, 2006 overpayment by 11 U.S.C. ' 362(a)(7) without an order lifting the automatic stay. However, such an offset is permitted pursuant to section 553(a), once the automatic stay is lifted. 8. The Internal Revenue Service has a right of set off

under 26 U.S.C. ' 6402, which right constitutes Acause@ for relief from the automatic stay under 11 U.S.C. ' 362(d)(1). re Orlinski, 140 B.R. 603 (Bankr. S.D. Ga. 1991). In


WHEREFORE, the Internal Revenue Service respectfully moves that the automatic stay be lifted to allow the Internal Revenue Service to apply the Debtor’s overpayment for the quarter ended September 30, 2006 against the Internal Revenue Service’s prepetition claims. PAUL M. WARNER United States Attorney

By: _/s/S. Mark Barnes______ S. MARK BARNES Special Assistant United States Attorney 150 Social Hall Avenue Suite 313A Salt Lake City, Utah 84111 Facsimile: (801) 799-6635 Telephone: (801) 799-6623


CERTIFICATE OF SERVICE I hereby certify that I am an employee of the United States Attorney's office for the District of Utah and that a copy of the foregoing MOTION TO LIFT THE STAY TO SET OFF OVERPAYMENT was served by electronic transmission, where indicated and by first class mail on March 26, 2008, to the following: Atlas Marketing Group, L.C. P.O. Box 906 Lehi, UT 84043 Ronald S. George Attorney for Debtor (Received Electronically) John T. Morgan Attorney for United States Trustee (Received Electronically) Kim R. Wilson Attorney for Creditor Committee (Received Electronically) All entities listed on the mailing matrix of the Court.

_/s/S. Mark Barnes S. MARK BARNES Special Assistant United States Attorney