John Fremont v. United States ( 2019 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In the Matter of: No. 17-55842
JOHN R. D. FREMONT, D.C. No. 2:16-cv-07973-JAK
------------------------------
MEMORANDUM*
JOHN R. D. FREMONT,
Appellant,
v.
UNITED STATES OF AMERICA,
Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted December 7, 2018
Pasadena, California
Before: IKUTA and N.R. SMITH, Circuit Judges, and STEEH,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
John Fremont appeals the district court’s order affirming the bankruptcy
court’s grant of summary judgment for the United States. We affirm.
The bankruptcy court had the power to reconsider its previous denial of the
government’s motion for summary judgment at any time. See Fed. R. Civ. P.
54(b); Fed. R. Bankr. P. 7054(a); see also City of Los Angeles, Harbor Div. v.
Santa Monica Baykeeper, 254 F.3d 882, 885–86 (9th Cir. 2002) (recognizing a
court’s inherent authority to reconsider interlocutory orders over which the court
retains jurisdiction). Even if the bankruptcy court erred by failing to construe the
government’s motion for reconsideration under Rule 60 of the Federal Rules of
Civil Procedure as a motion for reconsideration of an interlocutory order, and
therefore the court’s procedure for considering the motion did not comply with the
local bankruptcy rules, any such error was harmless. Fremont cannot show he
suffered prejudice, as he had a meaningful opportunity to set out his position and
respond to the government’s arguments in his response to the government’s
motion. Moreover, Fremont has not explained what additional material evidence
or arguments he would have presented had the court complied with the local rules.
See Wade v. State Bar of Arizona (In re Wade), 948 F.2d 1122, 1125 (9th Cir.
1991) (per curiam).
2
The bankruptcy court did not err in concluding there was no genuine issue of
material fact that Fremont had failed to file a return for the 2001, 2002, and 2003
tax years. Based on the undisputed facts, Fremont failed to provide the
information required by a tax return until three to five years after the IRS assessed
deficiencies for these tax years. Such a “belated acceptance of responsibility” does
not qualify as “an honest and reasonable attempt to comply with the tax code.”
Smith v. U.S. Internal Revenue Serv. (In re Smith), 828 F.3d 1094, 1097 (9th Cir.
2016). Because Fremont did not file a “return” within the meaning of 11 U.S.C.
§ 523(a)(1)(B), see id. at 1096–97, his tax debts from the 2001, 2002, and 2003 tax
years are excepted from discharge. See 11 U.S.C. § 523(a)(1)(B)(i).
AFFIRMED.
3