United States v. Sorenson ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 14, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-4292
(D.C. No. 2:96-CV-226-DB)
VERN W . SORENSON, individually (D. Utah)
and as personal representative of the
Estate Of Olivene C. Sorenson,
Defendant-Appellant,
and
PAW NEE PROPERTY PRO JECTS,
IN C.; CITICORP M ORTGAGE, IN C.,
Defendants.
OR D ER AND JUDGM ENT *
Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Vern W . Sorenson, on his own behalf and on behalf of the estate of his
wife, Olivene C. Sorenson 1 (Sorensons), appeals from judgments of the district
court for unpaid federal income taxes, interest, penalties, and fees. W e affirm.
Background
In 1987, the Sorensons agreed to the entry of a decision in the United
States Tax Court that they were liable for tax deficiencies for tax years 1977
through 1981. Shortly before the entry of the tax court’s decision, the Sorensons
transferred some real property to defendant Pawnee Property Projects, Inc. Then
in 1989, tax liabilities of $12,536 were assessed against M r. Sorenson for tax year
1984.
In 1995, the Internal Revenue Service assessed the deficiencies for 1977
through 1981, at $95,999; as to the 1984 assessment, $7,173 remained unpaid.
In 1996, the United States filed a complaint in district court to (1) reduce the
unpaid taxes, penalties, and fees to judgment; (2) set aside the transfer of real
property to Pawnee; 2 and (3) foreclose the tax liens against the property.
In 1997, the district court granted the United States’ unopposed motion for
partial summary judgment concerning the unpaid taxes. The case was
administratively closed in 1999, subject to a motion to reopen.
1
Olivene C. Sorenson died during the course of the district court
proceedings.
2
Citicorp M ortgage, Inc. was also named as a defendant because the United
States believed that it may have had an interest in the real property.
-2-
M ore than three years later, the Sorensons filed a motion to vacate the
district court’s 1997 order for partial summary judgment, and argued that (1) they
were not “subject to the jurisdiction of the Corporate United States of America,”
R., Doc. 22 at 4; (2) the judgment was based on “false and fraudulent entries
which create the appearance of liability,” id. at 2; and (3) they were not subject to
the federal tax laws. The district court denied the motion, and this court
dismissed the Sorensons appeal because there was no final judgment in the case.
In the meantime, the Sorensons filed a complaint in Utah state court
seeking to cancel the federal tax liens. The suit was removed to federal district
court, where it was dismissed for lack of subject matter jurisdiction. On appeal,
this court affirmed the order dismissing the complaint. Sorenson v. O’Neill,
73 F. App’x 341 (10th Cir. 2003) (unpublished).
Eventually, the U nited States filed a motion to dismiss its lien foreclosure
claim and moved for entry of final judgments with respect to the tax assessments.
This time the Sorensons did object and argued that (1) there was no evidence of
any lawful assessments against them; (2) they were not subject to the authority of
the United States; (3) the United States lacked the power to file notices of federal
tax liens without a prior court order; and (4) criminal charges should be brought
against the lawyers for the U nited States based on the alleged filing of false
documents.
-3-
The district court entered an order in M arch 2005 that granted the United
States’ motion for entry of final judgments and dismissed its foreclosure claim.
Final judgments were entered against Vern W . Sorenson and the Estate of Olivene
C. Sorenson on October 12, 2005. This appeal followed.
Discussion
The Sorensons’ failure to respond to the United States’ motion for partial
summary judgment “does not, by itself, make summary judgment proper.” Neal v.
Lewis, 414 F.3d 1244, 1248 (10th Cir. 2005). Their burden to respond is not
triggered unless the moving party has met its initial burden of production under
Fed. R. Civ. P. 56(c). Neal, 414 F.3d 1248. In turn, we review the district
court’s grant of summary judgment de novo, “viewing the record i[n] the light
most favorable to the party opposing summary judgment.” Id. at 1247.
“Summary judgment is appropriate if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Id.
Construing M r. Sorensons pro se brief liberally, he appears to argue that
there was not a sufficient factual basis to support the district court order for
partial summary judgment. W e disagree.
In its order granting partial summary judgment, the district court found that
the motion was supported by a certificate of assessments, which it said are
“presumptively correct evidence of a taxpayer’s liability.” R., Doc. 19 at 2. The
court then found that the Sorensons failed to produce any evidence to rebut the
-4-
presumption of liability established by the certificate. M r. Sorenson fails to point
to anything in the record that would demonstrate a genuine issue of material fact
to preclude summary judgment, nor has he cited any case, statute, or regulation to
prove a misapplication of law. Therefore, we affirm the court’s order granting
partial summary judgment.
W e likew ise affirm the district court’s order granting the U nited States’
motion for entry of final judgments. In the district court and on appeal,
M r. Sorenson claims that he and his wife are sovereign entities beyond the reach
of the laws of United States, and that the government has no jurisdiction to tax
their private property. W e have consistently rejected such arguments. See, e.g.,
Lonsdale v. United States, 919 F.2d 1440, 1447-48 (10th Cir. 1990) (holding that
taxpayer challenge to the government’s authority to levy taxes is baseless and
frivolous).
The judgments of the district court are AFFIRMED.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
-5-