FILED
NOT FOR PUBLICATION SEP 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-56578
Plaintiff - Appellee, D.C. No. 3:08-cv-02140-MMA-
JMA
v.
MICHAEL BENOIT, MEMORANDUM *
Defendant - Appellant,
and
STATE OF CALIFORNIA FRANCHISE
TAX BOARD,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 10, 2012 **
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Benoit’s
request for oral argument is denied.
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Michael Benoit appeals pro se from the district court’s summary judgment
for the United States in its action to reduce to judgment federal income tax
assessments and to foreclose liens on Benoit’s real property in order to satisfy
deficiencies from tax years 1995 and 1996. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo, Hughes v. United States, 953 F.2d 531, 541 (9th Cir.
1992), and we affirm.
The district court properly granted summary judgment to the United States
because the government submitted Form 4340 for years 1995 and 1996, and Benoit
failed to produce any evidence that undermined the validity of the assessed
amounts. See Palmer v. I.R.S., 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); Hughes, 953 F.2d at 535 (official
certificates, such as Form 4340, can constitute proof of the fact that the
assessments were actually and properly made); see also Hansen v. United States, 7
F.3d 137, 138 (9th Cir. 1993) (per curiam) (taxpayers’ conclusory, self-serving
affidavit did not raise a triable dispute so as to undermine validity of
representations in Form 4340).
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The district court did not abuse its discretion in denying Benoit’s motion to
compel in part and in denying Benoit’s motion for sanctions. See Hallett v.
Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (“[B]road discretion is vested in the
trial court to permit or deny discovery, and its decision to deny discovery will not
be disturbed except upon the clearest showing that denial of discovery results in
actual and substantial prejudice to the complaining litigant.” (citation and internal
quotation marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or allegations raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Benoit’s remaining contentions concerning the district court’s jurisdiction
and impartiality, the relevance of his homestead declaration, and whether the
district court improperly adjudicated the California Franchise Tax Board’s interests
or improperly resolved genuine disputes of material fact, are unpersuasive.
Benoit’s motion “for order to show cause why summary judgment should
not be vacated,” filed on November 17, 2011, is denied.
AFFIRMED.
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