United States v. Percy Newby

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2021
• Docket: 20-35156
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-35156

Plaintiff-Appellee, D.C. No. 3:18-cv-05978-RBL

v. MEMORANDUM* PERCY F. NEWBY,

Defendant-Appellant,

and

LAWN LIMITED; et al.,

Defendants.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted June 21, 2021**

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.

Percy F. Newby appeals pro se from the district court’s summary judgment

* 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).

20-35156 for the United States in its action seeking to reduce federal tax assessments to

judgment, set aside fraudulent property transfers, and foreclose on tax liens. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

legal conclusions, McGinest v. GTE Service Corp., 360 F.3d 1103, 1112 (9th Cir.

2004), and for clear error its factual determinations, Wolfe v. United States, 798

F.2d 1241, 1244 n.2 (9th Cir.), amended by 806 F. 2d 1410 (9th Cir. 1986). We

may affirm on any basis supported by the record. Enlow v. Salem-Keizer Yellow

Cab Co., 389 F.3d 802, 811 (9th Cir. 2004). We affirm.

The district court properly granted summary judgment for the government

regarding Newby’s assessed tax liabilities for the 2002 through 2006 tax years

because the government introduced evidence of its deficiency determinations, and

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

determinations 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 v.

United States, 953 F.2d 531, 535 (9th Cir. 1992) (absent contrary evidence, official

certificates, such as a Form 4340, constitute proof of facts that assessments were

actually and properly made).

The district court properly granted summary judgment for the government

2 20-35156 regarding the attachment of tax liens to the property belonging to Newby,

including the two properties held by Lawn Limited, because Newby failed to raise

a genuine dispute of material fact as to whether Lawn Limited was not his alter

ego. See 26 U.S.C. § 6321 (imposing a federal tax lien upon “all property and

rights to property, whether real or personal, belonging to [a delinquent taxpayer]”);

G.M. Leasing Corp. v. United States, 429 U.S. 338, 350-51 (1977) (holding that

the government may “properly regard” an alter ego’s assets as the delinquent

taxpayer’s assets for purposes of § 6321); Wolfe, 806 F.2d at 1411 (“State law

governs the determination of whether there exists an alter ego from whom the

government may satisfy the obligation of a taxpayer.”); Rapid Settlements, Ltd. v.

Symetra Life Ins. Co., 271 P.3d 925, 930 (Wash. 2012) (describing the alter ego

doctrine under Washington law).

We reject as meritless Newby’s contention that the district court lacked

jurisdiction. See 26 U.S.C. §§ 7401, 7403 (authorizing the government to

commence civil actions for the recovery of taxes and enforcement of liens).

We reject as unsupported by the record Newby’s contentions that the district

court was biased against him.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

3 20-35156 appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

20-35156