Unpublished Disposition, 894 F.2d 410 (9th Cir. 1988)

MEMORANDUM^** 

SUMMARY

David L. Smith ("Appellant") brought suit against the Internal Revenue Service ("I.R.S."), two I.R.S. officials, and the United States ("appellees"), seeking an order to have tax collection proceedings against him cease, as well as compensatory and punitive damages. The district court granted appellees' motion for summary judgment. Appellant brought a motion for reconsideration, under Fed. R. Civ. P. 59(e), of the court order dismissing the suit, which the district court denied. He now appeals the denial of his motion for reconsideration of the district court's grant of summary judgment against him.

We affirm the district court's order denying the motion for reconsideration under Fed. R. Civ. P. 59(e), finding that the district court did not abuse its discretion in denying the motion. To the extent that the motion for reconsideration restates the same issues raised earlier in appellant's opposition to summary judgment, the motion was properly denied. Although the timely motion for reconsideration brings the merits of the underlying judgment before the court, we find that summary judgment was properly granted. Finally, it is not necessary for us to reach jurisdictional issues presented by this case. "While ordinarily we must determine the jurisdictional question first, we need not do so where the jurisdictional question is complex and the appeal is clearly without merit." Wolder v. United States, 807 F.2d 1506, 1507 (9th Cir. 1987).

FACTS

In April of 1986, appellant received a notice of deficiency from the I.R.S. for failure to file federal income tax returns or report wage income for 1978 through 1982. In November, 1986, the I.R.S. sent appellant a notice on Form 6641, intended to be a notice of assessment and demand for payment. In October, 1987, the I.R.S. served appellant with a Notice of Intention to Levy and levied appellant's wages to collect the deficiency.

Appellant brought suit in March, 1988, to quiet title to the property being levied upon and to obtain a preliminary injunction pending the outcome of that action. He alleged that he was not a citizen subject to taxation, that no tax could be assessed against him because no return had been filed on his behalf, and that the proper assessment procedures had not been followed.

The government sought a summary judgment dismissal in the action and supported its arguments by attaching a Certificate of Assessments and Payments (Form 4340) to the motion as evidence that the assessments had been properly made, as well as a declaration of Carlos Lavin, an I.R.S. employee, to explain the entries on Form 4340. Appellant unsuccessfully attempted to obtain documents maintained by the I.R.S. that could show that a valid assessment had been recorded against him. On July 15, 1988, the summary judgment motion was granted. The district court held that there was no genuine issue of material fact regarding the assessment and collection of the deficiency.

Appellant filed a motion for reconsideration on July 26, 1988, arguing that the type of notice provided to appellant on Form 6641 was inadequate under I.R.C. Sec. 6303(a), because of both the form used and the lack of actual request for payment, that the I.R.S. had not recorded the deficiency as required by I.R.C. Sec. 6203, and that appellant was entitled to discovery of the I.R.S. maintained documents. After requesting additional briefing from the parties, the district court denied the motion on January 5, 1988.

Appellant timely appeals.

STANDARD OF REVIEW

The trial court's denial of the motion for reconsideration is reviewed for abuse of discretion. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (citing Plotkin v. Pacific Tel. & Tel., 688 F.2d 1291, 1292 (9th Cir. 1982)). Any valid appeal of a summary judgment order is reviewed de novo. Backlund v. Barnhart, 778 F.2d at 1388 (citing Continental Casualty Co. v. City of Richmond, 763 F.2d 1076, 1078-79 (9th Cir. 1985)). The evidence must be viewed in the light most favorable to the nonmoving party to determine whether there are any genuine issues of material fact and whether the district court applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1340 (9th Cir. 1989).

ANALYSIS

A motion for reconsideration of summary judgment is properly denied when no arguments are presented that were not earlier raised in opposition to summary judgment. Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.), cert. denied, 110 S. Ct. 192 (1989); Backlund, 778 F.2d at 1388. The district court found that appellant's arguments regarding the allegedly inadequate form used for notice and demand, and the lack of actual request for payment, were reiterations of arguments in the brief opposing summary judgment, with no new analysis provided. It was not an abuse of discretion for the district court to reject those arguments as already raised and considered.

The remaining issues concern appellant's argument that there was no valid assessment because the I.R.S. could not prove compliance with notice and assessment procedures, as it did not properly record its assessment against appellant. Appellant maintained in the motion for reconsideration that liability had not been so recorded, and that he was entitled to discovery of any documents that would prove otherwise. On appeal, appellant argues that the district court erred in failing to allow discovery of these documents, in considering Form 4340 as evidence of a valid assessment, and in considering the declaration of Carlos Lavin when ruling on the summary judgment motion, because the declaration was made without personal knowledge.

Appellant's arguments regarding his right to discovery and the alleged lack of proper recording procedures were issues raised in the motion for reconsideration and are therefore subject to the abuse of discretion standard of review. Backlund, 778 F.2d at 1388. In response to the motion for reconsideration, the trial court issued an order requesting additional briefing on these issues, inviting appellant to make a showing that he was entitled to further discovery on the matter. We find that it was not an abuse of discretion for the district court to find, upon reviewing the briefs, affidavits, and exhibits submitted pursuant to the order, that appellant failed to make such a showing.

The last two issues, whether the district court erred in considering Form 4340 as evidence of a valid assessment and in considering the declaration of Carlos Lavin when granting summary judgment, were not made in appellant's motion for reconsideration. They are reviewable, however, because a timely filed motion for reconsideration brings the merits of the underlying judgment before the court. McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987). This is true even though the appellant designated the order being appealed as the order denying the motion for reconsideration, as it can be fairly inferred that the appellant intended to challenge the underlying summary judgment decision, and the appellees will not be prejudiced by the mistake because they briefed the issue of the validity of the underlying judgment. See id. The arguments are reviewed de novo to determine whether there is a genuine issue of material fact and whether the law was correctly applied. Id.

Appellant's argument that the Certificate of Assessments and Payments submitted by the government is inadmissible hearsay lacks merit. In his motion for reconsideration, the appellant had argued that the certificate of assessment submitted by the government was invalid because it stated that a fourth notice had been sent to appellant of his delinquency, contradicting the certificate of assessment that the appellant had introduced as an exhibit, which indicated only that a first notice had been sent. The district court held in its decision denying the motion for reconsideration that even if the government's certificate were ignored, the certificate that the appellant had put forward as evidence clearly showed that notice was given.

Similarly, even if the government-submitted certificate were ignored for purposes of deciding whether there was sufficient evidence for the district court to find that an assessment had been made, the certificate introduced by appellant shows clearly that an assessment was in fact made. Appellant does not, in his appeal, challenge the admissibility of his own evidence. We decline to do so as well.

Finally, the appellant maintains that the district court erred in considering the declaration of Carlos Lvin in making its summary judgment decision. Because this declaration accompanied and explained the entries in the Form 4340 submitted by the government, we need not address whether the declaration was properly considered. We find that the Form 4340 supplied by appellant sufficiently demonstrated that assessment and notice had been made and that there is no genuine issue of material fact. The district court did not err in granting summary judgment against appellant.

AFFIRMED.