JEFFREY RISCHE V. USA, No. 17-35591 (9th Cir. 2018)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAY 23 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JEFFREY ALAN RISCHE, U.S. COURT OF APPEALS No. 17-35591 Plaintiff-Appellant, D.C. No. 2:16-cv-00339-RSL v. MEMORANDUM* UNITED STATES OF AMERICA; et al., Defendants-Appellees. Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding Submitted May 15, 2018** Before: SILVERMAN, BEA, and WATFORD, Circuit Judges. Jeffrey Alan Rische appeals pro se from the district court’s summary judgment in favor of the United States and denial of Rische’s motion for judgment on the pleadings in Rische’s tax refund action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. United States v. Alameda Gateway Ltd., 213 * 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). Rische’s request for oral argument, set forth in the opening brief, is denied. F.3d 1161, 1164 (9th Cir. 2000) (summary judgment); 3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1357 (9th Cir. 1990) (judgment on the pleadings). We affirm. The district court properly granted summary judgment for the government because Rische failed to raise a genuine dispute of material fact as to whether he is entitled to refunds for tax years 2013 and 2014. See United States v. Janis, 428 U.S. 433, 440 (1976) (in a tax refund suit the taxpayer bears the burden of proving the amount the taxpayer is entitled to recover). The district court properly denied Rische’s motion for judgment on the pleadings because Rische failed to establish that he is entitled to judgment as a matter of law. See Fed. R. Civ. P. 12(c); Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989) (“[A] plaintiff is not entitled to judgment on the pleadings when the answer raises issues of fact that, if proved, would defeat recovery.”). We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 2 17-35591

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