[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14952 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 22, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-80998-CV-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN KORMAN,
Defendant-Third-Party
Plaintiff-Appellant,
PAMELA KORMAN,
Defendant-Third-Party
Plaintiff,
INTERNAL REVENUE SERVICE,
et al.,
Defendants,
versus
CALVIN BYRD,
Third-Party-Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 22, 2010)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
John Korman, proceeding pro se, appeals the grant of summary judgment to
the United States on its claim seeking to reduce to judgment Korman’s unpaid
1996 federal income tax. No reversible error has been shown; we affirm.
Here, the government supported its summary judgment motion with (1) a
declaration of Calvin Byrd, an Internal Revenue Service (IRS) revenue officer,
stating that Korman filed a federal income tax return for 1996, with a tax liability
of $89,913.00, and that he had not paid the assessment despite notice and demand
for payment, and (2) a certified copy of a Form 4340 “Certificate of Assessments,
Payments, and Other Specified Matters” that reflected the 1996 assessment, all
penalties, interest, and other fees, credits granted to Korman for tax overpayments
in 1998 and 1999, and a reduction for $150,000 received from Defendant Aurora
Loan Services.1 Over Korman’s opposition, the district court granted the
1
The government included Aurora as a defendant because it had an interest in real
property owned by Korman on which the government sought to foreclose. But pursuant to an
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government’s motion and entered summary judgment against Korman in the
amount of $36,719.65, plus all interest and statutory additions “accruing thereafter
as provided by law.”
On appeal, Korman raises a host of procedural arguments for avoiding the
judgment.2 We review a district court’s grant of summary judgment de novo; and
we view the evidence and all reasonable factual inferences in the light most
favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364, 1367
(11th Cir. 1999).
“In reducing [a tax] assessment to judgment, the Government must first
prove that the assessment was properly made.” United States v. White, 466 F.3d
1241, 1248 (11th Cir. 2006). Submission of a Form 4340 creates a presumption
that the assessment was proper. Id. “Once the Form is provided, the taxpayer must
then prove that the assessment is erroneous in order to prevail.” Id.
The government’s submission of the Form 4340 was presumptive proof of
Korman’s tax liability; and Korman brought forth no evidence to show that the tax
agreement between Aurora and the government, wherein Aurora agreed to pay $150,000, Aurora
was dismissed as a defendant.
2
Korman purports to challenge the district court’s jurisdiction. But district courts have
jurisdiction to hear civil actions to collect taxes. 26 U.S.C. § 7402(a). Korman’s arguments are
all wrong either factually (e.g., his contentions that the summons was not signed by the clerk and
the Attorney General did not authorize the lawsuit against him) or legally (e.g., his contention
that the Supplemental Federal Rules of Civil Procedure for admiralty and forfeiture actions
govern and require the government to verify its complaint).
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assessment was erroneous. Although he implies in his brief that the federal income
tax return (Form 1040) referenced in the Form 4340 may be a forgery or otherwise
inaccurate, Korman did not counter that document with a copy of the Form 1040
he himself filed to demonstrate any purported conflicting information. Korman
argues the tax assessment is invalid because the government never sent him a
notice and demand for payment, but the Form 4340 indicates a notice was sent; and
even still, a notice of assessment need not be sent before the government may file
suit. United States v. Chila, 871 F.2d 1015, 1019 (11th Cir. 1989). Korman’s
other arguments challenging the tax assessment are erroneous, unsupported, or
irrelevant.3
Korman’s remaining appellate arguments are frivolous. See, e.g., United
States v. Ward, 833 F.2d 1538, 1539 (11th Cir. 1987) (describing as “utterly
without merit” contentions that federal jurisdiction extends only to Washington,
D.C. and federal territories and enclaves, that federal income tax laws do not apply
to residents of the states, and that only the withholding agents of nonresident aliens
and foreign corporations are subject to federal income tax); McNair v. Eggers, 788
3
We reject Korman’s argument that he wrongly was denied the opportunity to depose two
IRS employees involved in responding to Korman’s Freedom of Information Act requests. The
government agreed to stipulate to the authenticity of the information these employees provided
in the IRS responses to Korman’s requests; and the district court abused no discretion in granting
the government’s request for a protective order. See Lee v. Etowah County Bd. of Educ., 963
F.2d 1416, 1420 (11th Cir. 1992).
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F.2d 1509, 1510 (11th Cir. 1986) (characterizing as “stale” and “patently
frivolous” arguments that wages do not qualify as income and that the taxpayer is
not “a person” subject to the tax laws). We affirm the district court’s grant of
summary judgment to the government.
AFFIRMED.
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