Charles Tummino v. United States

FILED
NOT FOR PUBLICATION MAY 24 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CHARLES TUMMINO, No. 10-35236

Plaintiff - Appellant, D.C. No. 3:06-cv-00955-AC

v.
MEMORANDUM *
UNITED STATES OF AMERICA;
INTERNAL REVENUE SERVICE,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding **

Submitted May 15, 2012 ***

Before: CANBY, GRABER, and M. SMITH, Circuit Judges.

Charles Tummino appeals pro se from the district court’s summary

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

**
The parties consented to proceed before the magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment upholding the Internal Revenue Service’s (“IRS”) determination

sustaining a proposed tax lien to collect civil penalties assessed against Tummino

for promoting a tax-evasion scheme. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo, Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th

Cir. 2002) (en banc), and we affirm.

The district court properly granted summary judgment because Tummino

failed to raise a genuine dispute of material fact as to whether his role in selling a

pay-phone investment plan and falsifying its tax benefits failed to satisfy the

requirements for a civil penalty for promoting an abusive tax shelter. See 26

U.S.C. §§ 6700(a)(1)(B), (a)(2)(A); United States v. Estate Pres. Servs., 202 F.3d

1093, 1098 (9th Cir. 2000) (listing factors for liability under § 6700). Tummino

also failed to raise a triable dispute as to whether the IRS correctly calculated the

amount of the penalty. See 26 U.S.C. § 6700(a) (penalty is the lesser of $1,000 for

each activity as to each scheme or 100 percent of income from the scheme).

Tummino’s remaining contentions are unpersuasive.

Arguments not raised in Tummino’s opening brief are deemed waived. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

AFFIRMED.

2 10-35236