With Devil, taxman gets His Due, too

May 11, 1995|By Ross Peddicord | Ross Peddicord,Sun Staff Writer

Devil His Due is arriving for the Pimlico Special on Saturday with his own personal agent from the Internal Revenue Service.

The 6-year-old horse was expected to be enjoying this spring at stud in Kentucky instead of running in his third consecutive Special, which he won in 1993.

L But that was before the IRS stepped in and kept him in work.

The IRS maintains custody of the horse's foal papers and an agent accompanies him to his races and makes sure that any money he earns -- about $350,000 in the past nine months -- is placed in an escrow account with the New York Racing Association.

At Saratoga last summer, the horse's owner, Edith Libutti, came in for a rude awakening.

The IRS filed a levy against the horse to claim back taxes that her father, Robert Libutti, owes the government. The IRS says that the elder Libutti owns an undisclosed financial interest in Devil His Due, a charge that his daughter disputes.

In a now-famous story, Devil His Due bit the IRS agent when she arrived at the horse's barn Aug. 25, two days before he was to run in the Whitney Handicap, and tagged him as IRS property.

Edith Libutti went to court and obtained an injunction, asking that the levy be lifted until her rightful ownership could be established by the judicial system.

The courts have allowed the horse to continue to run as long as the IRS holds the papers and the horse's earnings are kept in a separate account managed by the NYRA. Expenses, including stakes and training fees, are deducted from his winnings.

A trial, in which Edith Libutti maintained that her father provided her with nothing more than advice about buying and selling horses and had no financial interest in her Lion Crest Stable, was held in U.S. District Court in Binghamton, N.Y., in late March. The judge asked that post-trial briefs be filed by April 30. But the IRS asked for an extension, which the judge granted until May 31. An assistant in the office of U.S. District Judge Thomas McAvoy said yesterday that no decision is expected "in the near future."

In the meantime, Devil His Due, who has failed to win in seven races since being seized by the IRS, still is competing.

Michael Meuser, a Lexington, Ky., attorney who represents Edith Libutti, said that Devil His Due was supposed to be sold to stand at stud at Buck Pond Farm in Kentucky this spring.

"But because of delays, the trial was not held until the breeding season was halfway over. Since the matter of who owns the horse isn't settled, the horse can't be sold," Meuser said.

"Through it all, Edie has been a real trooper."

In January, Devil His Due, after finishing unplaced in the Breeders' Cup Classic and finishing second to Cigar in the NYRA Mile, was freshened and then put back in training and sent to Florida.

He didn't race there, but recently finished second and fourth in the Westchester and Excelsior handicaps, respectively, in New York.

"But he's perked up in the last week or so and that's why we're running him in the Special," said his trainer, Hall of Famer Allen Jerkens.

"I'm a little disappointed that he's asked to carry as much weight as the younger horses who are in their best form will carry. But we're going to accept it and he'll be there."

Devil His Due carries 121 pounds, 1 pound less than Cigar, who is in the midst of a six-race winning streak, and the same weight as Concern, winner last fall of the Breeders' Cup Classic.

Jerkens said he "can't worry about" the horse's ownership problems with the IRS.

"It's my job to keep the horse in the best shape I can and hope that it all comes out happy," he said.

Jerkens added that Devil His Due will be reunited in Saturday's race with Wigberto Ramos, who rode the horse to a second-place finish in last year's Special.

Jose Santos recently has been riding Devil His Due, but Jerkens said the jockey "never bothered to call me" about Saturday's race.

"But Ramos is riding well," Jerkens added. "He won a race yesterday at Belmont Park."

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