F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ANDRE KIMBOKO; PRISCILLA J.
KIMBOKO,
Plaintiffs-Appellants,
v. Nos. 03-1145
03-1146
UNITED STATES OF AMERICA, 03-1147
on behalf of its Agent, the Internal 03-1148
Revenue Service, 03-1150
03-1151
Defendant-Appellee. 03-1152
(D.C. Nos. 02-D-69 (PAC)
through 02-D-75 (PAC))
(D. Colo.)
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate records, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Appellants Andre and Priscilla Kimboko appeal from the district court’s
dismissal of their seven complaints seeking refunds of previously paid tax
penalties under 26 U.S.C. § 7422. 1
The penalties were assessed because of late
payment of employment tax liabilities. Each complaint related to a separate
quarter, specifically, the fourth quarter of 1987, the last two quarters of 1988,
and all four quarters of 1989. The district court determined that the complaints
should be dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1) because Appellants failed to timely file administrative claims for
refunds. We review the dismissal of Appellants’ complaints de novo, applying
the same standard as the district court. See U.S. West, Inc. v. Tristani , 182 F.3d
1202, 1206 (10th Cir. 1999).
Appellants raise the following issues: 1) whether a remand order tolls the
statute of limitations under certain conditions; 2) whether a court is required to
1
Appellants’ complaints also contained claims for civil damages under
26 U.S.C. § 7433(b). The district court dismissed these claims for failure to state
a claim upon which relief can be granted. Appellants did not raise any issue with
respect to these dismissals in their opening brief. See Aplts’ Br. at 10, 13, and
14. Failure to raise an issue in the opening appellate brief waives that issue.
State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).
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comply with Rule 52(a) in a trial without a jury; 2
and 3) whether venue is proper
in the District of Colorado. 3
After careful review of the record on appeal and the applicable legal
standards, we conclude that the district court correctly decided this case.
Therefore, we AFFIRM the district court’s judgment for the reasons stated in its
Order filed March 26, 2003.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
2
This issue was not raised below so it will not be considered by this court.
See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
3
This issue is moot because we agree with the district court that these
complaints should be dismissed for lack of subject matter jurisdiction.
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