United States v. Michael Bigley

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2018
• Docket: 17-16966
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-16966

Plaintiff-Appellee, D.C. No. 2:14-cv-00729-HRH

v. MEMORANDUM* MICHAEL ANDREW BIGLEY; et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona H. Russel Holland, District Judge, Presiding

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Michael Andrew Bigley, Carolyn E. Bigley, Robert B. Kelso, and Raeola D.

Kelso 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 from tax

years 2004 to 2006. We have jurisdiction under 28 U.S.C. § 1291. We review de

* 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). novo. 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 for

years 2004 to 2006, and the Bigleys failed to raise a genuine dispute of material

fact as to the insufficiency of the notices of deficiencies and assessments 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,

540 (absent contrary evidence, official certificates, such as a Form 4340, constitute

proof of fact that assessments were actually and properly made).

The district court properly granted summary judgment for the government to

foreclose on the tax lien, and properly ordered the sale of the subject property,

because the Bigleys failed to raise a genuine dispute of material fact as to whether

there was no nominee relationship or fraudulent conveyance. See 26 U.S.C.

§ 7403(a), (c) (authorizing district court to decree a sale of property subject to

federal tax lien according to its findings regarding the interests of all parties); see

also Ariz. Rev. Stat. § 44-1001, et seq. (Arizona’s Uniform Fraudulent Transfer

Act permits aggrieved creditors to set aside certain fraudulent transactions).

The district court did not abuse its discretion by denying appellants’ Federal

2 17-16966 Rule of Civil Procedure 60(b) motions because appellants failed to establish any

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

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

reconsideration under Rule 60(b)).

Appellants fail to challenge the district court’s sanctions finding that the

Kelsos and ISA Ministries are the nominees, alter-egos, and fraudulent transferees

of the Bigleys with respect to the subject property, and have therefore waived any

such challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n

appeal, arguments not raised by a party in its opening brief are deemed waived.”).

We reject as meritless appellants’ contentions regarding the district court

judge’s authority to preside over the case. See 28 U.S.C. § 371(b)(1).

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 pending requests and motions are denied.

AFFIRMED.

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