Unpublished Disposition, 930 F.2d 31 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 31 (9th Cir. 1991)

Bradley E. VOTE, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 90-16116.

United States Court of Appeals, Ninth Circuit.

Submitted April 5, 1991.* Decided April 12, 1991.

Before TANG, FARRIS and D.W. Nelson, Circuit Judges.


Bradley E. Vote appeals the summary judgment entered in favor of the United States in his action under 28 U.S.C. § 2410 to quiet title to real property seized by the Internal Revenue Service. Vote argues that the district court erred in: (1) denying his Rule 56(f) motion for additional time to conduct discovery; (2) denying him an opportunity to respond to the summary judgment motion after denying his Rule 56(f) motion; (3) admitting evidence presented by the United States in support of its summary judgment motion; and (4) ruling that there was no genuine issue of fact as to whether the United States complied with the proper collection procedure. We affirm.

When a party opposing summary judgment submits an affidavit stating reasons why it cannot present facts essential to justify its opposition, the court may order a continuance to permit discovery to be had. See Fed. R. Civ. P. 56(f). Vote argues that the United States has sole possession of evidence that no assessment was executed or issued to him, and that the district court therefore abused its discretion in denying him the Rule 56(f) continuance. We reject the argument. See Hall v. State of Hawaii, 791 F.2d 759, 761 (9th Cir. 1986) (denial of Rule 56(f) continuance proper where plaintiff failed to make clear what information he was seeking and how it would preclude summary judgment). Vote fails to identify any particular document that the United States refused to produce which would preclude summary judgment. See Garrett v. City and County of San Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987) (denial of continuance reversed where defendants had refused to produce 16 personnel records, and district court had granted summary judgment without ruling on motion for continuance).

Vote was not denied a meaningful opportunity to respond to the motion for summary judgment. He filed a response in opposition to summary judgment and a cross-motion for partial summary judgment. Vote does not allege that he would have changed anything in his response to the summary judgment motion if the district court had delayed ruling on the motion after it denied his motion for a continuance. The district court was fully apprised of Vote's arguments. Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984) (reversing summary judgment entered simultaneously with denial of Rule 56(f) motion where district court granted summary judgment sua sponte and plaintiff had no opportunity to oppose) is inapposite. We find no error.

The government's Certificate of Assessments and Payments, which showed that an assessment was executed against Vote and that notice and demand for payment were sent to him, was properly authenticated. An unsealed document purporting to bear the signature in the official capacity of an officer or employee of a United States agency is admissible without extrinsic evidence of authenticity if a public officer certifies under seal that the signature on the document is authentic and was made in the officer's official capacity. See Fed.R.Evid. 902(2). The Certificate of Assessments and Payments bears the signature of Robert E. Wenzel, director of the Internal Revenue Service Center at Ogden, Utah, and is accompanied by a Certificate of Official Record signed by Robert E. Wenzel under seal, certifying that the Certificate of Assessments and Payments was authentic and signed in the director's official capacity.

Vote argues that the Certificate of Assessments and Payments was inadmissible under Fed.R.Evid. 1004 in the absence of a showing that the original record of assessment and notice of assessment to Vote was unavailable. We reject the argument. A tax assessment is a bookkeeping notation by which the Internal Revenue Service records the liability of a taxpayer on its tax rolls. See 26 U.S.C. § 6203. The Certificate of Assessments and Payments was proper evidence of the assessment. See United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 1067 (1984) (where IRS routinely destroyed copies of notices of deficiency and demands for payment, postal form certifying that notices of deficiency had been mailed and IRS form certifying that taxes and penalties had been assessed were sufficient in absence of contrary evidence to establish that notices and assessments were properly made). See also United States v. Neff, 615 F.2d 1235, 1242 (9th Cir.), cert. denied, 447 U.S. 925 (1980) (document that was product of systematized data storage and retrieval by public agency charged with maintaining accurate tax information was admissible to show defendant did not file 1974 and 1975 tax returns).

Assuming arguendo that the entries on the Certificate of Assessments for the mailing dates of the balance due and delinquency notices were posted by computer before the notices were in fact mailed, the entries nevertheless are evidence that notices were mailed. It does not follow from the fact that the mailing dates were posted before the notices were mailed that the dates posted were false. Vote failed to present credible evidence to refute the accuracy of the posted dates. It was not error to accept the dates on the Certificate as accurate.

Vote argues that Internal Revenue Officer Debra Vahe lacked personal knowledge as to the authenticity of the documents she purported to authenticate because her knowledge of the assessments was based solely on the Certificate of Assessments and Payments. We reject the argument. Vahe was the revenue officer assigned to collect Vote's tax deficiency. She had personal knowledge of Vote's case from her review of his file. She executed the Final Notice of Intention to levy, Notice of Seizure, Notice of Federal tax lien to Vote's nominee, the Donald Kirkhoven Trust, and Notice of Sealed Bid Sale. These documents were public records which Vahe identified as in her custody as an employee of the Internal Revenue Service. See Fed.R.Evid. 901(b) (7).

Vote has failed to raise a genuine issue of material fact as to whether the United States violated the requirements of notice of seizure under 26 U.S.C. § 6335(a) and notice of sale under 26 U.S.C. § 6335(b). Section 6335(a) provides in pertinent part:

notice in writing shall be given by the Secretary to the owner of the property ... or shall be left at his usual place of abode or business.... If the owner cannot be readily located, or has no dwelling or place of business ... the notice may be mailed to his last known address.

Section 6335(b) provides in pertinent part:

The Secretary shall as soon as practicable after the seizure of the property give notice to the owner, in the manner prescribed in subsection (a).... Such notice shall specify the property to be sold, and the time, place, manner, and conditions of the sale thereof.

Vote claims that notices of seizure and sale were mailed to him rather than served personally upon him, and that the delivery of the notices by mail constituted technical noncompliance with the statute. We recognize that the Second Circuit has required strict compliance with the timing-of-sale requirement of 26 U.S.C. § 6335(d). See Kulawy v. United States, 917 F.2d 729, 734-35 (2nd Cir. 1990) (summary judgment against taxpayer reversed where government acknowledged that it gave taxpayer shortened public notice period before sale of property and failed to show that the shortened period had no prejudicial effect). The reason in Kulawy for requiring strict compliance with the timing-of-sale provision was that the shortened public notice period possibly caused the taxpayer to miss favorable bids that he otherwise would have received, a fact that would have been especially difficult for the taxpayer to prove. Id. at 735. There is no possibility that Vote was similarly prejudiced. There was evidence that the property had not been sold as of the date the district court granted summary judgment, sixteen months after notice of seizure was mailed. The period following notice of seizure and preceding sale of the property was not impermissibly shortened. There is no question of fact regarding prejudice by the delivery of notice by mail.



The panel unanimously finds this case suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3