USA v. David Wheeler, et al, No. 08-56282 (9th Cir. 2010)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 18 2010 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 08-56282 D.C. No. 2:07-cv-06384-VBFPLA10/1/7 v. DAVID WHEELER, an individual; ALAN BIRD, Trustee of City Holding Trust, as nominee of David Wheeler, MEMORANDUM* Defendants - Appellants, and STATE OF CALIFORNIA FRANCHISE TAX BOARD, Defendant. Appeal from the United States District Court for the Central District of California Valerie Baker Fairbank, District Judge, Presiding Argued and Submitted October 7, 2010 Pasadena, California * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: WARDLAW and W. FLETCHER, Circuit Judges, and LYNN,** District Judge. David Wheeler appeals the district court s grant of summary judgment reducing IRS tax assessments to judgment and foreclosing tax liens on the house held by CHT Trust as Wheeler s nominee. We have jurisdiction under 28 U.S.C. ยง 1291, and we affirm. The IRS introduced sufficient evidence to trigger the legal presumption of correctness afforded to tax assessments. See United States v. Fior D Italia, Inc., 536 U.S. 238, 242 (2002). Wheeler never introduced evidence that clearly demonstrated the proper amount of taxes he owes, and failed to overcome this presumption. See United States v. Pierce, 609 F.2d 407, 408 (9th Cir. 1979) (per curiam). The district court thus correctly granted summary judgment to the government in reducing the IRS tax assessments to judgment. Wheeler also challenges the authority of various IRS agents to make the assessments against Wheeler and the authority of other IRS agents to authorize the Department of Justice to file this suit. We have described similar claims as frivolous. Palmer v. IRS, 116 F.3d 1309, 1311, 1314 (9th Cir. 1997). The district court correctly rejected them. ** The Honorable Barbara M. Lynn, United States District Judge for the Northern District of Texas, sitting by designation. 2 Finally, the district court was correct in concluding that the CHT Trust was Wheeler s nominee. Whether a certain level of control over land or goods as established by state law constitutes property or rights to property is a matter of federal law. Drye v. United States, 528 U.S. 49, 58 (1999) (quoting United States v. Nat l Bank of Commerce, 472 U.S. 713, 727 (1985)). Courts in this circuit have generally agreed on a test for determining if property is held as a nominee. See, e.g., United States v. Bell, 27 F. Supp. 2d 1191, 1195 (E.D. Cal. 1998); Towe Antique Ford Found. v. IRS, 791 F. Supp. 1450, 1454 (D. Mont. 1992), aff d, 999 F.2d 1387 (9th Cir. 1993). The district court correctly applied this test. The district court thus correctly granted the government s motion for summary judgment foreclosing the tax lien on, and ordering sale of, the house held by CHT Trust as Wheeler s nominee. AFFIRMED. 3
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