United States v. Burnett Ex Rel. C.O.B.

Case: 10-41164 Document: 00511688886 Page: 1 Date Filed: 12/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 7, 2011
No. 10-41164 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHARLIE O. BURNETT, III, as next friend to his minor children, C.O.B. IV,
C.B., E.B., and C.B., Beneficiaries of the Lemmawayne Burnette
Testamentary Trust,
Defendant-Appellant
______________________
CHARLIE O. BURNETT, III, as next friend to his minor children, C.O.B. IV,
C.B., E.B., and C.B., Beneficiaries of the Lemmawayne Burnette
Testamentary Trust,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeal from the United States District Court for the
Southern District of Texas
USDC No. 2:09-CV-286; 2:09-CV-305
Case: 10-41164 Document: 00511688886 Page: 2 Date Filed: 12/07/2011
No. 10-41164
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Charlie O. Burnett, III (“Burnett”) appeals the
district court’s holdings that (1) the Internal Revenue Service established valid
tax assessments against him totaling $621,623.87, including penalties and
interest; (2) the government may levy on Burnett’s property on Holly Road in
Corpus Christi, Texas (the “Holly Road Property”); and (3) the government’s levy
on Burnett’s property on Austin Street in Corpus Christi (the “Austin Street
Property”) was not wrongful.
First, the district court correctly ruled that the United States introduced
sufficient evidence of Burnett’s tax indebtedness by producing the relevant
Certificates of Assessments and Payments (Form 4340).1 Next, although
Burnett contends that he has no ownership interest in the Holly Road and
Austin Street Properties and that those properties are owned by Investment
Services, which he characterizes as a trust of which his children are the
beneficiaries, the district court correctly ruled that Burnett is the owner of the
Holly Road and Austin Street Properties, as Investment Services is merely his
nominee.2 Relevant factors in this determination include the inadequate
consideration paid by Investment Services, Burnett’s control over the properties
in anticipation of suit by the government, the close relationship between Burnett
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
See Perez v. United States, 312 F.3d 191, 195 (5th Cir. 2002); United States v.
McCallum, 970 F.2d 66, 71 (5th Cir. 1992).
2
See Oxford Capital Corp. v. United States, 211 F.3d 280, 284 n.1 (5th Cir. 2000)
(listing factors considered in determining nominee status).
2
Case: 10-41164 Document: 00511688886 Page: 3 Date Filed: 12/07/2011
No. 10-41164
and Investment Services, and Burnett’s possession and enjoyment of the
properties.
Further, Burnett’s contention that the district court improperly considered
evidence gathered by the government after the levy of the Austin Street Property
is meritless because (1) the government had sufficient “cause” to levy that
property at the time it did so,3 and (2) the government properly gathered
additional evidence after the levy.4 Lastly, the district court did not abuse its
discretion by (1) permitting the government to supplement its motion for
summary judgment after the deadline for dispositive motions and (2) denying
Burnett's motion for an extension of his time in which to respond. Accordingly,
the judgment of the district court is, in all respects,
AFFIRMED.
3
See id. at 286 (“cause” required at time of levy).
4
See id. at 283 (government must produce substantial evidence of nexus between
property and taxpayer “after an opportunity to fully develop the factual record”).
3