Unpublished Disposition, 923 F.2d 862 (9th Cir. 1987)

MEMORANDUM^** 

Wilbur Mitchem appeals a grant of summary judgment in favor of the United States in his action to quiet title as the result of a tax lien arising from his failure to pay taxes assessed against him. We affirm.

* The Commissioner of the Internal Revenue Service determined that Mitchem's taxes for 1981-1985 were deficient and issued notices of deficiency. The taxes were assessed and a notice of assessment and demand for payment were sent to Mitchem. Mitchem did not pay the amounts demanded, and a federal tax lien arose against him pursuant to 26 U.S.C. § 6321 (1988). A notice of federal tax lien was filed on January 7, 1987.

Mitchem brought suit in May 1988 "to quiet title to certain real property on which the Defendant the United States claims a levy/lien." Mitchem sought declaratory and injunctive relief. The government moved that the court dismiss the case for lack of subject matter jurisdiction or, in the alternative, that summary judgment be granted in its favor. The district court denied the motion to dismiss,¹  but granted summary judgment on the basis of its finding that the levy "followed a lawful notice and demand for payment pursuant to 26 USC Secs. 6303 and 6151 and that there fails to exist any genuine issue as to any material fact." Mitchem appeals.

II

Mitchem complains that the district court ignored his affidavits in considering the government's motion for summary judgment. These affidavits appear to challenge the delegation from the Secretary of the Treasury to the Commissioner of Internal Revenue of the authority to administer the internal revenue laws, on the ground that the orders delegating the authority are not published in the Federal Register, as required by 44 U.S.C. § 1507 (1988).²  Specifically, Mitchem claims that Treasury Department Orders Nos. 150-37 and 150-10 have not been published in the Federal Register.

26 C.F.R. Sec. 301.7701-9(b), which was published in 25 Fed.Reg. 10928 (Nov. 17, 1960), provides that whenever the Internal Revenue Code vests authority in the Secretary of the Treasury or his delegate, any Treasury Regulation that provides that such authority may be exercised by, inter alia, the Commissioner or a district director shall be considered a delegation by the Secretary of the authority in question. 26 C.F.R. Sec. 301.7701-9(b) (1990). Additionally, because 26 C.F.R. Sec. 301.6212-1 (1990) specifically delegates the authority to issue notices of deficiency for unpaid taxes to the district directors, the notice provided to Mitchem was not unauthorized or irregular.

Mitchem further argues that the district court erred in refusing his request for discovery. It appears that the discovery requested was intended to uncover information showing that the delegation orders were not properly filed and published. [Blue Brief at 5]. However, because there was no irregularity in the filing and publishing of the delegation orders, the district court did not abuse its discretion in denying discovery.

III

Mitchem argues that the procedures used were irregular because the OMB control numbers for the 1040 forms sent to him, and for Treasury Regulation Sec. 1.6012-1 were incorrect or non-existent, thereby violating 5 C.F.R. Sec. 1320.5.³  The 1040 form bears the control number 1545-0074, which Mitchem claims to refer to treatment of gain from disposition of certain natural resource recapture property. However, Treasury Regulations (26 C.F.R.) Sec. 602.101 (1990) shows that OMB number 1545-0074 is assigned, inter alia, to information requests made in connection with sections 1.6012-1 and 1.6151-1, which deal with filing federal income tax returns and the obligation to pay taxes shown due on those returns. See 26 C.F.R. Secs. 1.6012-1, 1.6151-1 (1990). Thus, 1545-0074 is the proper OMB number for the 1040 form.

Mitchem also asserts that Treasury Regulation 1.6012-1 does not have an OMB number. However, the OMB regulations provide that OMB numbers for "collections of information published in regulations" may be published in the Federal Register "as part of the regulatory text or as a technical amendment." 5 C.F.R. Sec. 1320.7 (1990) (added 1983, 48 Fed.Reg. 13689, amended 1988, 53 Fed.Reg. 16623). 26 C.F.R. Sec. 602.101, which was published in 50 Fed.Reg. 102,222 (March 14, 1985), was promulgated specifically to comply with that regulation, and lists the OMB numbers for section 1.6012-1 as being 1545-0074, 1545-0085 and 1545-0675. 26 C.F.R. Sec. 602.101 (1990).

The government has shown that the OMB numbers are proper and were published at 26 C.F.R. Sec. 602.101 from 1985 to the present. Mitchem cited a 1988 document in trying to show that the OMB numbers were incorrect. He does not make clear whether he challenges the OMB numbers for years prior to 1985, and presents no evidence that the Regulations or the 1040 forms prior to 1985 do not satisfy the requirements of the Paperwork Reduction Act. Because a party opposing summary judgment "must set forth specific facts showing there is a genuine issue for trial," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted), there is no reason to disturb the district court's decision with respect to this claim.

IV

Mitchem argues that he should have been allowed to cross-examine John Loveland, whose affidavit supported the government's motion for summary judgment. The basis for requesting cross-examination was that "Loveland's declaration was the whole defense of the government" and that that defense was "frivolous and without foundation."

"A party opposing summary judgment 'may not rest upon the mere allegations or denials of [its] pleadings' but rather 'must set forth specific facts showing that there is a genuine issue for trial.' " No Gwen Alliance, Inc. v. Aldridge, 841 F.2d 946, 953 (9th Cir. 1988) (quoting Fed. R. Civ. P. 56(e)). " [N]either a desire to cross-examine an affiant nor an unspecified hope of undermining his or her credibility suffices to avert summary judgment." National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 19830. Mitchem's request to cross-examine Loveland is based on nothing more than his unsupported assertion that Loveland's affidavit is false. Refusing this request was not error.

V

Finally, Mitchem challenges the record of tax assessments introduced by the government on the ground that they are computer-generated documents that are inadmissible as hearsay. Certificates of tax assessments and payments are "highly probative, and are sufficient, in the absence of contrary evidence, to establish that the notices and assessments were properly made." United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830 (1984) (citing United States v. Ahrens, 530 F.2d 781, 784-86 (8th Cir. 1976) and Cataldo v. Commissioner, 60 T.C. 522, 524 (1973), aff'd 499 F.2d 550 (2d Cir. 1974)); see also United States v. Chilla, 871 F.2d 1015 (11th Cir.), cert. denied 110 S. Ct. 498 (1989) (The "Certificate of Assessments and Payments" submitted by the government is "presumptive proof of a valid assessment.").

Mitchem suggests no evidence indicating that the documents presented by the government are inaccurate other than the possibility of a computer error. Furthermore, the assertion that the assessments are incorrect is a challenge to the validity of the assessment underlying the lien, and as such is beyond the subject matter jurisdiction of the district court. See Pollack, 819 F.2d 144 (6th Cir. 1987) (A suit to quiet title pursuant to 28 U.S.C. § 2410(a) is proper only to challenge the procedural regularity of a tax lien, not the underling assessment).

AFFIRMED.