Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.eric E. and Peggy K. Chandler, Plaintiffs-appellants, v. United States of America, Defendant-appellee, 931 F.2d 900 (10th Cir. 1991)

Before STEPHEN H. ANDERSON, and TACHA, Circuit Judges, and KANE,^*  District Judge.

ORDER AND JUDGMENT^** 

JOHN L. KANE, Senior District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Taxpayers appeal from an order of the district court granting summary judgment for the government in this tax refund action. The court concluded that taxpayers raised different grounds for recovery in their complaint than they had raised in their claim for tax refund and that the government had not waived the requirement that any ground for recovery be stated in the claim for refund.

On appeal, taxpayers argue (1) the district court erred in determining it does not have subject matter jurisdiction; (2) the district court erred in granting summary judgment based upon grounds that do not appear in the motion for summary judgment; (3) the district court erred in granting summary judgment without having properly authenticated evidence; (4) the district court erred in rejecting their argument that the government failed to assert an avoidance, affirmative defense or statutory defense in its pleadings or motions; (5) the district court erred in not enforcing its local rules; (6) the district court erred in determining the grounds asserted for recovery were not the same grounds asserted in the claim for refund; and (7) the district court erred in determining the government had not waived an insufficient claim for refund.

Upon consideration of the briefs and record on appeal, we conclude the district court correctly granted summary judgment. Accordingly, we affirm for substantially the reasons stated in the magistrate's report and recommendation, which was adopted by the district court.

The judgment of the United States District Court for the District of Utah is AFFIRMED.

The mandate shall issue forthwith.