NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 18 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-35839

Plaintiff-Appellee, D.C. No. 3:16-cv-00046-EJL-CWD

v.

MEMORANDUM*

GARY RAYMOND HARVEY; BERNICE

C. HARVEY,

Defendants-Appellants.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Gary Raymond Harvey and Bernice C. Harvey appeal pro se from the

district court’s summary judgment for the United States in its action to reduce to

judgment federal income tax assessments for tax years 1989-1992, 1994-1999, and

2003-2005. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992). We affirm.

The district court properly granted summary judgment for the government to

reduce assessments to judgment because the government submitted Form 4340,

Certificates of Assessment, for tax years 1989 to 1992, 1994 to 1999, and 2003 to

2005, and the Harveys failed to raise a genuine dispute of material fact as to the

insufficiency of the government’s evidence for those tax years. See Palmer v. IRS,

116 F.3d 1309, 1312 (9th Cir. 1997) (Internal Revenue Service assessments for

unpaid taxes entitled to presumption of correctness unless taxpayer submits

competent evidence that the assessments were “arbitrary, excessive, or without

foundation”); see also Hughes, 953 F.2d at 535 (absent contrary evidence, official

certificates, such as a Form 4340, constitute proof of fact that assessments were

actually and properly made).

Contrary to the Harveys’ contentions, the district court properly concluded

that the government’s action was timely filed because their offers-in-compromise

tolled the limitations period. See 26 U.S.C. §§ 6331(i)(5), (k)(1), 6502(a)(1).

Further, the government timely reinstated the federal tax liens against Gary Harvey

during the pendency of the action because the government’s filing of this action

extended the limitations period. See 26 U.S.C. §§ 6325(f)(2), 6502(a). Finally, the

district court properly concluded that this action was not barred by the doctrine of

res judicata because the claims in this action were not raised or could not have

2 17-35839 been raised in Gary Harvey’s prior criminal action. See Stewart v. U.S. Bancorp,

297 F.3d 953, 956 (9th Cir. 2002).

We reject as without merit the Harveys’ contentions regarding double

jeopardy, the authority of the district court, and the applicability of the Uniform

Commercial Code.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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