United States v. George Parker

FILED
NOT FOR PUBLICATION JUN 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-56722
Plaintiff - Appellee, D.C. No. 3:07-cv-01969-H-AJB
v.
MEMORANDUM*
GEORGE STEVEN PARKER,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted December 17, 2013**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
George Steven Parker appeals the district court’s grant of summary
judgment to the United States in its suit seeking to reduce to judgment Parker’s
federal income tax liability. Representing himself on appeal, Parker claims that he
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
introduced evidence creating a triable issue of fact respecting (1) the government’s
tax assessment, (2) whether this assessment (if valid) was discharged in his
personal bankruptcy, and (3) the validity of the government’s liens on his pre-
bankruptcy property.
We review Parker’s appeal from the grant of summary judgment de novo,
viewing the evidence in the light most favorable to Parker. Palmer v. Comm’r, 116
F.3d 1309, 1311 (9th Cir. 1997). Therein, we must determine whether there are any
“genuine issues of material fact precluding summary judgment” in favor of the
United States. Id.I.
In a collection case brought by the United States to reduce its tax
assessments to judgment, “the government bears the initial burden of proof.” Id. at
1312. The government’s Certificates of Assessments and Payments satisfied this
initial burden here and created a presumption of correctness. Id. at 1311. The
amounts are supported by the language of the superseding information to which
Parker plead, see United States v. Cazares, 121 F.3d 1241, 1246 (9th Cir. 1997)
(“We have consistently held that a defendant's plea of guilty conclusively admits
all factual allegations of the indictment.”), Parker’s coworkers’ testimonies, his
own testimony, and statements by Parker’s attorney at the plea hearing, see United
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States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005) (“[W]e have
repeatedly held that criminal defendants are bound by the admissions of fact made
by their counsel in their presence and with their authority.”). Further, Parker has
failed to provide evidence showing “that the deficiency was arbitrary or
erroneous.” Hardy v. Comm’r, 181 F.3d 1002, 1004 (9th Cir. 1999). His attempt to
raise a genuine issue of fact, by arguing that the balance of his loan account with
Arcwel (the partial basis of the IRS’s assessment calculations) was inaccurate, fails
without evidence to support the argument. See Bradford v. Comm’r, 796 F.2d 303,
306 (9th Cir. 1986) (An appeal will generally be unsuccessful “where the taxpayer
kept inadequate records . . ., and then relied mainly on testimony to challenge the
Commissioner’s reconstruction of income .”). Thus, there is no genuine factual
dispute respecting the amounts Parker owes the government.1
II.
A debtor’s discharge in bankruptcy may be excepted “for a tax . . . with
respect to which the debtor made a fraudulent return or willfully attempted in any
manner to evade or defeat such tax.” 11 U.S.C. § 523(a)(1)(C). The government
must demonstrate “(1) a knowing falsehood; (2) an intent to evade taxes; and (3) an
1
The government’s Certificates of Assessments and Payments show Parker
failed to report $580,459 of income in 1986 and at least $633,799 in 1987.
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underpayment of tax.” Considine v. United States, 683 F.2d 1285, 1286 & n.1 (9th
Cir. 1982). “[E]xceptions to discharge should be strictly construed against an
objecting creditor and in favor of the debtor.” Snoke v. Riso (In re Riso), 978 F.2d
1151, 1154 (9th Cir. 1992).
Parker’s guilty plea to a violation of 26 U.S.C. § 7206(1) estops him from
claiming that the returns were not willfully false and did not result in an
underpayment of tax. Considine, 683 F.2d at 1287. However, his “conviction under
§ 7260(1), without more, does not establish fraudulent intent.” Id.; McKay v.
United States, 957 F.2d 689, 691 (9th Cir. 1992).
Regarding intent, Parker alleges a material factual dispute. Although his
testimony respecting his corporate loan account and its balance has been
inconsistent, Parker has consistently testified that he embezzled the funds to save
Arcwel from involuntary bankruptcy and that he did not act with an intent to evade
taxes. This view of the evidence may be reasonably inferred from the record. See
Provenz, v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996) (“Cases where intent is a
primary issue generally are inappropriate for summary judgment unless all
reasonable inferences that could be drawn from the evidence defeat the plaintiff's
claim.”). Further, the fact that this evidence’s basis is primarily Parker’s testimony
does not weaken its relevance, because it is more than conclusory, see id. at 1490-
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91, and credibility determinations are prohibited at the summary judgment stage.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Therefore, the district
court should not have granted summary judgment in favor of the United States
under § 523(a)(1)(C) for an exception to discharge. See Provenz, 102 F.3d at 1489.
III.
Parker’s tax liability and penalties for 1984 as well as his penalties (and
interest on those penalties) for the 1986 and 1987 tax year were discharged by the
2009 bankruptcy action. Though this discharge relieved Parker from personal
liability, the prepetition tax liens on his property remain enforceable after the
discharge. Dewsnup v. Timm, 502 U.S. 410, 417–18 (1992); Isom v. United States
(In re Isom), 901 F.2d 744, 745 (9th Cir. 1990). Accordingly, the district court
properly granted summary judgment to the government on this issue.
AFFIRMED in part, REVERSED and REMANDED in part. The parties
shall bear their own costs.
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