NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-35839
Plaintiff-Appellee, D.C. No. 3:16-cv-00046-EJL-CWD
v.
MEMORANDUM*
GARY RAYMOND HARVEY; BERNICE
C. HARVEY,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Gary Raymond Harvey and Bernice C. Harvey appeal pro se from the
district court’s summary judgment for the United States in its action to reduce to
judgment federal income tax assessments for tax years 1989-1992, 1994-1999, and
2003-2005. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992). We affirm.
The district court properly granted summary judgment for the government to
reduce assessments to judgment because the government submitted Form 4340,
Certificates of Assessment, for tax years 1989 to 1992, 1994 to 1999, and 2003 to
2005, and the Harveys failed to raise a genuine dispute of material fact as to the
insufficiency of the government’s evidence for those tax years. See Palmer v. IRS,
116 F.3d 1309, 1312 (9th Cir. 1997) (Internal Revenue Service assessments for
unpaid taxes entitled to presumption of correctness unless taxpayer submits
competent evidence that the assessments were “arbitrary, excessive, or without
foundation”); see also Hughes, 953 F.2d at 535 (absent contrary evidence, official
certificates, such as a Form 4340, constitute proof of fact that assessments were
actually and properly made).
Contrary to the Harveys’ contentions, the district court properly concluded
that the government’s action was timely filed because their offers-in-compromise
tolled the limitations period. See 26 U.S.C. §§ 6331(i)(5), (k)(1), 6502(a)(1).
Further, the government timely reinstated the federal tax liens against Gary Harvey
during the pendency of the action because the government’s filing of this action
extended the limitations period. See 26 U.S.C. §§ 6325(f)(2), 6502(a). Finally, the
district court properly concluded that this action was not barred by the doctrine of
res judicata because the claims in this action were not raised or could not have
2 17-35839
been raised in Gary Harvey’s prior criminal action. See Stewart v. U.S. Bancorp,
297 F.3d 953, 956 (9th Cir. 2002).
We reject as without merit the Harveys’ contentions regarding double
jeopardy, the authority of the district court, and the applicability of the Uniform
Commercial Code.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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