United States v. Nordberg , 97 F.3d 1445 ( 1996 )

97 F.3d 1445

79 A.F.T.R.2d 97-866, 96-2 USTC P 50,580

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES of America, Plaintiff, Appellee,
v.
Paul NORDBERG, Defendants, Appellants.

No. 96-1432.

United States Court of Appeals, First Circuit.

Oct. 10, 1996.

Paul Nordberg on brief pro se.

Loretta C. Argrett, Assistant Attorney General, William s. Estabrook, Thomas V.M. Linguanti, Tax Division, Department of Justice, and Donald K. Stern, United States Attorney, on brief for appellee.

D.Mass.

AFFIRMED.

Before TORRUELLA, Chief Judge, and CYR and STAHL, Circuit Judges.

PER CURIAM.

1

We have reviewed de novo the district court's grant of summary judgment in favor of the plaintiff-appellee. We conclude that that determination was correct and see no need to write separately. We, therefore, affirm, essentially for the reasons stated in the district court's memorandum and order, dated April 8, 1996. We add only the following comments.

2

At page 6 of its memorandum and order, the district court made a slip of the pen. In reciting the summary judgment standard, the court stated that it must view the entire record in the light most favorable to the "plaintiffs" and indulge all reasonable inferences in their favor. In this case, the government was the plaintiff and the moving party. Obviously, the district court meant to refer to the "defendants", as the non-moving party. It is clear from the next paragraph and the remainder of the opinion that the district court understood the relative burdens of the moving and non-moving parties, understood which party carried which burden in this case, and applied the correct standard. Contrary to the appellants' attempt to create an issue that does not exist, the district court did not "reverse[ ] the rule for inferences." Brief at p. 35.

3

In addition, we note that the government has conceded that, because it has already applied the appellants' income tax overpayments for the tax years 1991 and 1992 to the balance it claimed that appellants owed for the tax year 1987, the amount of these overpayments was properly credited to the amount owed by the taxpayers.

4

Appellants' request for oral argument is denied. The alternate request that we accept supplemental material in lieu of oral argument is denied. The supplemental material should have been included within the permitted number of pages in the reply brief. In any event, we have reviewed this supplemental material and it does not change our decision.

5

The "emergency motion" is denied as moot.

6

Affirmed. Loc. R. 27.1.