Alden v. U.S.

Full title: John C. ALDEN, M.D., Plaintiff/Appellant, v. UNITED STATES of America…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 31, 1997

121 F.3d 714 (9th Cir. 1997)

Opinion

121 F.3d 714 (9th Cir. 1997) John C. ALDEN, M.D., Plaintiff/Appellant, v. UNITED STATES of America, Defendant/Appellee. Amy TIMACHEFF, Plaintiff, v. UNITED STATES of America; and California Franchise Tax Board, Defendant/Appellees, v. John C. ALDEN, M.D., Counter-claimant/Appellant. Nos. 94-16793, 96-16262. United States Court of Appeals, Ninth Circuit July 31, 1997

Argued and

Submitted April 16, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

80 A.F.T.R.2d 97

Appeal from the United States District Court for the Northern District of California Saundra Brown Armstrong, District Judge, Presiding

Before: D.W. NELSON and FERNANDEZ, Circuit Judges, and DONALD W. MOLLOY, District Judge. ²

2 The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation.

MEMORANDUM ¹

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

John C. Alden (Alden) appeals from a grant of summary judgment awarded in favor of the United States. The judgment ordered the sale of Alden's residence in Berkeley, California, to satisfy various outstanding state and federal tax liens. His position is not well taken. As a consequence, the judgment of the district court is affirmed.

DISCUSSION

Alden argues that the FTB used this action to reverse the decision rendered by Judge Karlton in the case involving the Rumsey ranch. We have carefully reviewed the record and can find nothing in Judge Karlton's opinion to support the contention that Judge Karlton ruled against the State of California's right to collect taxes from Alden. The district court correctly determined the issue of Alden's California tax liability was not subject to res judicata based on Judge Karlton's opinion. ³

3 Alden also challenges the Stipulation Agreement on the grounds of res judicata. The Stipulation provided that the FTB would receive fourth priority on the proceeds of sale of the Berkeley residence against its lien claim of $125,672.70. We agree with the district court that nothing in Judge Karlton's opinion warrants the application of res judicata to negate the Stipulation Agreement.

Alden next argues that in determining the priorities for distribution of proceeds from the sale of the Berkeley property, the district court erred by relying on an IRS rule allegedly promulgated in violation of the Administrative Procedure Act. This issue is raised for the first time on appeal. An issue raised for the first time on appeal is subject to review "only under certain narrow circumstances," namely, to prevent a miscarriage of justice; when a change in the law raises a new issue while the appeal is pending; and when the issue is purely one of law. Parks School of Business. Inc. v. Symington, 51 F.3d 1480, 1488 (9th Cir.1995). Alden has failed to show how the district court made an error of law. None of the exceptions apply in this case. Accordingly, we decline to visit this issue.

We also decline to consider Alden's contention, raised for the first time at oral argument, that the district court should have determined the exact amount of the state's lien rather than simply deciding the question of whether the lien existed.

We find the magistrate judge did not abuse his discretion by considering testimony from a FTB employee at the hearing on Alden's motion for reconsideration. The FTB employee testified that the FTB had recorded the pertinent lien releases in error. He further testified that the FTB corrected its error by re-recording the lien certificate at a later date. Admission of such relevant testimony does not rise to an abuse of discretion.

Even if the court had abused its discretion in admitting the testimony, the error would be harmless because the testimony did not form the basis of the court's decision in the matter. In rejecting Alden's argument that the two lien releases had nullified his tax obligation to the FTB, the court relied on two factors. First, the FTB had not released lien certificate number 83040-000079, which shows an amount of $152,495.58 due in tax, penalties and interest for the period 1977-83. Second, Alden, as the delinquent taxpayer, was subject to a statutory lien, which could not have been released because he had not paid the taxes owed. We find no fault in the court's reasoning.

Finally, Alden argues that the district court erred in adopting the magistrate's finding that the new evidence did not warrant a modification of the summary judgment. In this, Alden does no more than doggedly restate his argument that the two lien releases entirely extinguished his FTB tax liability. As noted above, the magistrate relied upon substantial evidence that other FTB tax liens, both statutory and recorded, remained in full force and effect against Alden. Thus, the district court did not commit error in adopting the Findings and Recommendation of the magistrate judge.

CONCLUSION

Alden has failed to identify any material issues of fact for trial. He has similarly failed to identify any errors of law or clearly erroneous findings of fact that would warrant reversal of summary judgment. The judgment of the district court is affirmed in all respects.

AFFIRMED.