U.S. v. Holm

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Johannes HOLM; Anna Holm…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jun 13, 2001

11 F. App'x 962 (9th Cir. 2001)

Opinion

11 Fed.Appx. 962 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Johannes HOLM; Anna Holm, Defendants-Appellants. and Freeman Aviation; Omega Trust; Nassau Life Insurance Company; Ken Hunter; Committee for Non Communist Banking, Defendants. No. 00-56067. D.C. No. CV-96-07647-MMM-VAP. United States Court of Appeals, Ninth Circuit. June 13, 2001

Argued and Submitted June 5, 2001.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

In civil action for the collection or recovery of taxes, or of any fine, penalty, or forfeiture, the United States District Court for the Central District of California, Margaret M. Morrow, J., entered judgment of assessment and taxpayers appealed. The Court of Appeals held that: (1) publication of a delegation order was not required to effect a valid delegation of the Secretary of Treasury to commence action, and (2) District Court did not abuse its discretion in denying taxpayers' motion to reopen discovery.

Affirmed.

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding.

Before KOZINSKI, THOMAS, Circuit Judges, and COLLINS, ^* District Judge.

* Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.

MEMORANDUM ^**

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

The United States complied with the jurisdictional requirements of 26 U.S.C. §§ 7401 and 7403. Publication of a delegation order was not required to effect a valid delegation of the Secretary of Treasury to commence this action. United States v. Saunders, 951 F.2d 1065, 1067-68 (9th Cir.1991). The suit was validly authorized by the delegate of the Chief Counsel for the Internal Revenue Service. Contrary to the Holms' argument, a United States Attorney is authorized to commence an action to convert an Internal Revenue Service assessment into a judgment. 28 U.S.C. § 547(2). Further, a United States Attorney may delegate an assistant United States Attorney to commence such an action on her behalf. 28 U.S.C. § 542.

Page 963.

The district court did not abuse its discretion in denying the Holms' motion to reopen discovery given the Holms' lack of diligence in pursuing discovery prior to the discovery deadline and the Holms' refusal to meet with IRS agents prior to trial.

Finally, after a careful review of the record and consideration of the arguments presented, we conclude that the judgment of assessment was supported by the evidence and was not arbitrary or capricious. See United States v. Janis, 428 U.S. 433, 441-42, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).

AFFIRMED.