San Diego Drywall, Inc., Plaintiff-appellant, v. United States of America, Defendant-appellee, 56 F.3d 73 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 56 F.3d 73 (9th Cir. 1995) Submitted May 10, 1995. *May 16, 1995

Before: HALL and LEAVY, Circuit Judges, and HOGAN, District Judge.**


San Diego Drywall, Inc. appeals from the district court's grant of summary judgment in favor of the United States in this action for a refund of penalties that Drywall paid for failure to file timely returns regarding payroll taxes, 26 U.S.C. § 6651(a) (1), failure to make timely payments, 26 U.S.C. § 6651(a) (2), and failure to make timely deposits, 26 U.S.C. § 6656(a). We have jurisdiction over this timely appeal and hereby affirm.

The parties agreed to stay this action in the district court pending our decision in Conklin Bros. of Santa Rosa, Inc. v. United States, 986 F.2d 315 (9th Cir. 1993). Following that decision, both parties moved for summary judgment. The district court found the present case to be indistinguishable from Conklin Bros. and ruled that the United States was entitled to judgment as a matter of law.

Having reviewed the entire record, we agree with the district court that Conklin Bros. squarely controls the outcome of this case. The judgment of the district court is therefore



The panel unanimously finds this case suitable for decision without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir. R. 34.4


The Honorable Michael R. Hogan, United States District Judge for the District of Oregon, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3