United States v. Melba Ford

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2020
• Docket: 18-17217
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-17217

Plaintiff-Appellee, D.C. No. 1:17-cv-00187-DAD-EPG

v. MEMORANDUM* MELBA FORD,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted July 14, 2020**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Melba Ford 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 for tax years 1993, 2001, 2002, 2003, and 2005. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Hughes v. United States, 953 F.2d

* 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). 531, 541 (9th Cir. 1992). We affirm.

The district court properly granted summary judgment because the

government submitted Forms 4340 for the relevant years, and Ford failed to raise a

genuine dispute of material fact as to whether the tax and penalty assessments were

invalid. See Palmer v. IRS, 116 F.3d 1309, 1312 (9th Cir. 1997) (explaining that

the IRS’s deficiency determinations are entitled to the presumption of correctness

unless the taxpayer submits competent evidence that the assessments were

“arbitrary, excessive, or without foundation”); 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); Olson v. United States,

760 F.2d 1003, 1005 (9th Cir.1985) (explaining that the IRS may assess frivolous

return penalties when a tax return is premised on a position that is frivolous under

26 U.S.C. § 6702).

The district court did not abuse its discretion by denying Ford’s motion to

vacate or amend the judgment because Ford failed to demonstrate any basis for

such relief. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d

1255, 1262-63 (9th Cir. 1993) (standard of review and grounds for relief under

Federal Rule of Civil Procedure 59(e) or 60(b)).

We reject as without merit Ford’s contention that the district court erred by

failing to take judicial notice of IRS procedural manuals. To the extent the district

2 18-17217 court failed to consider facts that were properly the subject of judicial notice, Ford

was not prejudiced because the facts at issue, taken in the light most favorable to

Ford, would not have defeated summary judgment.

We reject as without merit Ford’s contentions that the district court violated

her due process rights and erred by failing to strike her IRS filings from the record,

failing to appoint counsel sua sponte, and holding her to “exacting evidentiary

standards imposed on attorneys.”

We do not consider Ford’s renewed request for appointment of counsel set

forth in her opening brief. In Docket Entry No. 23, this court denied Ford’s motion

for appointment of counsel and ordered that no motions for reconsideration,

clarification, or modification of the denial shall be filed or entertained. To the

extent Ford seeks reconsideration of the court’s February 25, 2019 or June 26,

2019 orders, we do not consider the requests for reconsideration. See Docket Entry

Nos. 8, 14.

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).

All other pending motions and requests for relief are denied.

AFFIRMED.

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