Salmon v. NDC

40 F. App'x 560

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2002
• Docket: No. 00-17186; D.C. No. CV-97-00510-DWH
• Status: Published

Opinion

MEMORANDUM

**

Taxpayer Sam Salmon, dba Salmon Construction (Salmon), appeals from the district court’s summary judgment holding that: (1) the Internal Revenue Service had a tax lien with priority over attorney fees earned by Salmon’s attorney, Kevin Mirch; and (2) the IRS was entitled to the full amount of the tax lien. We have jurisdiction under 28 U.S.C. § 1291.

Salmon argues that the district court erred in finding that only one of the lodestar elements under Kerr v. Screen Extras Guild, 526 F.2d 67, 69-70 (9th Cir.1975) had been satisfied. The district court correctly determined, however, that the documentation in support of attorney’s fees satisfied only one of the 12 Kerr factors.

Salmon challenges the validity of the tax lien and levy. A federal tax lien arose on March 28, 1994, when the IRS assessed penalties against Salmon. The hen attached to Salmon’s property, including his interest in the settlement proceeds. The Certificate of Assessment and Payments shows that Salmon was sent a notice and demand for payment, that payment was not made in full, and that a notice of federal tax hen was filed on May 20, 1994. The IRS sent a notice and demand for payment and a notice of intent to levy before levying on the property, as required by 26 U.S.C. §§ 6303 and 6331. The facts establish that the assessment, hen, and levy were valid.

Salmon argues that he was not liable for the IRS taxes upon which the government’s hen was based because he did not have control over the company funds. Salmon failed to challenge the hen, and the district court lacked jurisdiction to consider the underlying merits of the assessment. 26 U.S.C. § 7422.

Salmon argues that Nevada Revised Statute § 18.015(4) required the district court to adjudicate the attorney fees hen within five days. The statute, however, requires the court to adjudicate the hen after five days notice to ah interested parties.

Salmon argues that Nevada Revised Statute § 18.015(1) required the district court to determine the reasonableness of fees only where there is no agreement between the attorney and chent from which a fee could be calculated. The record contained no such agreement and the argument was not raised below.

Salmon argues that the district court erred in allowing removal of the matter to federal court. Salmon did not raise the matter below and removal was proper under 28 U.S.C. §§ 1444 and 2410.

Salmon argues that the attorney hen enjoyed a priority over the tax hen. The district court correctly found, however, that the attorney fee request was not reasonable under 26 U.S.C. § 6323(b)(8). Therefore, the attorney hen did not enjoy priority over the tax hen.

Salmon argues that the district court erred by inconsistently instructing the parties as to the burden of proof standard it was going to apply. Nothing in the record supports Salmon’s argument.

AFFIRMED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.