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Hansen v. U.S.

United States Court of Appeals, Ninth Circuit
May 24, 1993
7 F.3d 137 (9th Cir. 1993)

Summary

holding that Certificate of Assessment on Form 4340 is probative evidence in and of itself and, in the absence of contrary evidence, shows that notices and assessments were properly made

Summary of this case from McMaster v. C.I.R

Opinion

No. 92-55839.

Submitted May 12, 1993.

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4.

Memorandum Filed May 24, 1993. Order and Opinion Filed September 8, 1993.

John Hansen, Bellflower, CA, for plaintiffs-appellants.

James A. Bruton, Acting Asst. Atty. Gen., Gary R. Allen, Charles E. Brookhart, and Marion E.M. Erickson, Attys., Tax Div., Dept. of Justice; also on the brief were Terree A. Bowers, U.S. Atty. and Mason C. Lewis, Asst. U.S. Atty., of counsel, for the U.S.

Appeal from the United States District Court for the Central District of California.

Before: HUG, WIGGINS and THOMPSON, Circuit Judges.



ORDER

The memorandum disposition filed May 24, 1993, 993 F.2d 882, is redesignated a per curiam opinion for publication.

OPINION


Merlin and Dolores Hansen appeal pro se the district court's summary judgment in favor of the United States in the Hansens' action to quiet title under 28 U.S.C. § 2410. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

We review de novo a district court's summary judgment. Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992). "We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id. The party moving for summary judgment must show by "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . . that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hughes, 953 F.2d at 541. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or by the depositions, answers to interrogatories, and admissions on file, come forth with specific facts to show that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); see Hughes, 953 F.2d at 541-42. When the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact. See United States v. 1 Parcel of Real Property, 904 F.2d 487, 492 n. 3 (9th Cir. 1990); (citing Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978)).

The Hansens contend that a genuine issue of material fact exists as to whether the Internal Revenue Service ("IRS") sent the Hansens a notice of assessment and demand for payment as required under 26 U.S.C. § 6303(a). This contention lacks merit.

The Hansens argue that the evidence submitted by the IRS to support its motion for summary judgment fails to show that notice and demand was sent to the Hansens. The IRS relied on a Form 4340 Certificate of Assessments and Payments ("Form 4340") indicating that notice and demand was sent on May 23, 1988. The Hansens argue that Form 4340 is a computer-generated form prepared exclusively for litigation and that it therefore cannot be relied on as evidence.

In Hughes, we held that Form 4340 is admissible as a public record even though generated by a computer. 953 F.2d at 539-40. We stated that Form 4340 is probative evidence in and of itself and, "in the absence of contrary evidence, [is] sufficient to establish that notices and assessments were properly made." Id. at 540. Thus, the IRS properly submitted and relied on Form 4340 to show that notice and demand was sent to the Hansens.

The Hansens argue that a genuine issue of material fact nevertheless exists on this question because they submitted their own declaration denying that they ever received a notice of assessment and demand for payment. They argue that their declaration is evidence sufficient to make summary judgment inappropriate.

The Form 4340 submitted by the IRS shows that notice and demand was sent to the Hansens' correct address on May 23, 1988. Under Rule 56(e), the Hansens were required to present "specific facts" showing that the IRS did not send them notice and demand. See Hughes, 953 F.2d at 541-42. The Hansens submitted an affidavit stating only, in pertinent part, that "on or about the assessment date on our Certificate of Assessments and Payments we never received in the mail a § 6803 Notice and Demand or any other document from the IRS." This statement does not show the notice was not sent. Thus, it fails to raise a genuine issue of material fact on this issue. See 1 Parcel of Real Property, 904 F.2d at 492 n. 3. Accordingly, the district court did not err by granting the government's motion for summary judgment.

The government's request for sanctions against the Hansens for filing a frivolous appeal is denied.

AFFIRMED.

Although the IRS apparently sold the Hansens' property at a tax sale before the Hansens commenced this action, we decline to reach the question whether the government has therefore not waived its sovereign immunity under section 2410. See Hughes, 953 F.2d at 538 (section 2410 inapplicable if, at time action commenced, government has sold property and no longer claims interest in property). The record does not contain any evidence to show that the IRS, in addition to selling the property, no longer claims a mortgage or lien interest in the property.


Summaries of

Hansen v. U.S.

United States Court of Appeals, Ninth Circuit
May 24, 1993
7 F.3d 137 (9th Cir. 1993)

holding that Certificate of Assessment on Form 4340 is probative evidence in and of itself and, in the absence of contrary evidence, shows that notices and assessments were properly made

Summary of this case from McMaster v. C.I.R

holding that Form 4340 shows in the absence of contrary evidence, that notices and assessments were properly made

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holding that Form 4340 is probative evidence in and of itself and, in the absence of contrary evidence, shows that notices and assessments were properly made

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holding that "[w]hen the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact."

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holding that Certificate of Assessment on Form 4340 is probative evidence in and of itself and, in the absence of contrary evidence, shows that notices and assessments were properly made

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holding that conclusory allegations are insufficient to create a triable issue of fact, precluding summary judgment

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holding that "the IRS properly submitted and relied on Form 4340 to show that notice and demand was sent to the [taxpayers]"

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holding that taxpayers' affidavit denying receipt of IRS notice "fail[ed] to raise a genuine issue of material fact" as to whether notices were sent

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holding that IRS Form 4340 is probative evidence that plaintiff had notice of tax sale

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finding no genuine issue of material fact whether an IRS form was sent when the supporting declaration only contained a conclusory statement that the form was never received

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finding no genuine issue of whether an IRS form was sent when the supporting declaration only contained a conclusory statement that the form was never received

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finding no genuine issue of whether an IRS form was sent when the supporting declaration only contained a conclusory statement that the form was never received

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finding taxpayers' declaration that they did not receive notice of the tax assessment insufficient to show a genuine issue of fact for trial where IRS presented Form 4340

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finding taxpayers' declaration that they did not receive notice of the tax assessment insufficient to show a genuine issue of fact for trial where IRS presented Form 4340

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finding Form 4340, "a computer-generated IRS form prepared exclusively for litigation" indicating notice was sent is sufficient

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finding a IRS Form 4340 certificate of assessment "is probative evidence in and of itself and, in the absence of contrary evidence, [is] sufficient to establish that notices and assessments were properly made."

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finding that conclusory allegations unsupported by factual allegations are insufficient to create a triable issue of fact so as to preclude summary judgment

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finding taxpayers' declaration that they did not receive notice of the tax assessment was insufficient to show a genuine issue of fact for trial where IRS presented Certificates of Assessment

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finding taxpayers' declaration that they did not receive notice of the tax assessment was insufficient to show a genuine issue of fact for trial where IRS presented Form 4340

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concluding that Form 4340 established that IRS sent a notice of assessment and demand for payment

Summary of this case from Laszloffy v. C.I.R

concluding that, absent any contrary evidence, the government properly relied on Form 4340 to show that the IRS sent the taxpayers notice and demand for payment

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concluding that a Form 4340 Certificate can establish whether the IRS sent a notice and demand for payment

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affirming summary judgment where Commissioner's evidence supported its assessments and taxpayers relied upon conclusory allegations unsupported by facts

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Case details for

Hansen v. U.S.

Case Details

Full title:MERLIN HANSEN; DOLORES HANSEN, PLAINTIFFS-APPELLANTS, v. UNITED STATES OF…

Court:United States Court of Appeals, Ninth Circuit

Date published: May 24, 1993

Citations

7 F.3d 137 (9th Cir. 1993)

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