United States v. Walter Kubon

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-16059
Plaintiff-Appellee, D.C. No. 4:18-cv-04788-PJH
v.
MEMORANDUM*
WALTER JAMES KUBON; VALLY
KUBON,
Defendants-Appellants,
and
STATE OF CALIFORNIA FRANCHISE
TAX BOARD,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Walter James Kubon and Vally Kubon appeal pro se from the district court’s
summary judgment for the United States in its action to collect the Kubons’ unpaid
and delinquent federal taxes from the 2002 through 2004 tax years and to foreclose
on their property. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992). We affirm.
The district court properly granted summary judgment for the United States
because the Kubons failed to raise a genuine dispute of material fact as to whether
the tax assessments against them or the liens against their property were invalid.
See 26 U.S.C. § 7403(c) (authorizing the district court to decree a sale of property
subject to a federal tax lien); Palmer v. IRS, 116 F.3d 1309, 1312 (9th Cir. 1997)
(explaining that the IRS’s deficiency determinations are entitled to the presumption
of correctness unless the taxpayer submits competent evidence that the assessments
were “arbitrary, excessive, or without foundation”); United States v. Polk, 822 F.2d
871, 873 (9th Cir. 1987) (a federal tax lien is presumptively valid if Form 668 is
properly completed and filed in the correct location).
The district court did not abuse its discretion by denying the Kubons’ motion
to disqualify the district court judge because the Kubons presented no basis for
disqualification. See United States v. McTiernan, 695 F.3d 882, 891-92 (9th Cir.
2012) (setting forth standard of review and circumstances requiring recusal).
The district court properly dismissed the Kubons’ counterclaims because
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the Kubons failed to allege facts sufficient to state a plausible claim. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face” (citation and internal quotation marks omitted)); Adams v. Johnson,
355 F.3d 1179, 1184-86 (9th Cir. 2004) (taxpayers cannot sue government officials
for alleged constitutional violations regarding tax assessment and collection).
The district court properly denied the Kubons’ motion to dismiss because the
Kubons set forth no basis to dismiss the government’s complaint. See, e.g., 26
U.S.C. § 7402; 28 U.S.C. §§ 1340, 1345; United States. v. Studley, 783 F.2d 934,
937 (9th Cir. 1986) (rejecting as frivolous taxpayer’s argument that she was not a
person or citizen subject to federal tax laws).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
All pending motions are denied.
AFFIRMED.
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