The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [doc. #29]
Plaintiff United States of America moves for summary judgment. [doc. #29] Its motion was set for hearing on March 16, 2009. Under the Civil Local Rules, defendant's response to the motion was due on or before February 2, 2009. See CIV. L.R. 7.1(e)(2). To date, defendant neither filed a response nor sought additional time in which to file a response to plaintiff's motions.
When an opposing party does not file papers in the manner required by Civil Local Rule 7.1(e.2), the Court may deem the failure to "constitute a consent to the granting of a motion or other request for ruling by the court." CIV. L.R. 7.1(f.3.c). Notwithstanding defendant Mary Franklin's failure to file an opposition, the Court will review the motion on the merits to determine whether any legal issue exists that would preclude the granting of plaintiff's motion for summary judgment.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). The moving party bears the initial burden of demonstrating the absence of a "genuine issue of material fact for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A fact is material if it could affect the outcome of the suit under the governing substantive law. Id. at 248. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In this case, plaintiff moves for summary judgment on its own claims. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). If the movant meets its burden, the burden shifts to the non-movant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324.
The government bears the initial burden of proof in tax cases. United States v. Stonehill, 702 F.2d 1288, 1293 (9th Cir. 1983), cert. denied, 104 S.Ct. 1440 (1984). By introducing into evidence its assessment of taxes due, the government satisfies this initial burden. Id. Once the government satisfies its initial burden by introducing the assessment under section 6672, the taxpayer must show that she is not liable for the assessment. Oliver v. United States, 921 F.2d 916, 920 (9th Cir. 1990); see also United States v. Molitor, 337 F.2d 917, 922 (9th Cir.1964) ("if [the taxpayer] had adduced no evidence contesting the prima facie proof arising from the assessment," the government would be entitled to judgment for the assessed amount).
Plaintiff has provided a separate statement of uncontroverted facts in support of its motion for summary judgment. Evidentiary citations are provided for each statement of uncontroverted facts. The Court incorporates below plaintiff's statement of uncontroverted
1. Mary A. Franklin failed to file federal income tax returns (Form 1040) for the tax years 1993 and 1994. See Declaration of Karen Buhrow ("Buhrow Decl.") ¶¶ 4, 8, Exs. 1, 10, 11.
2. As a result, the IRS calculated Franklin's federal income tax liabilities for the 1993 and 1994 tax years based on information reported by third-parties, including Form 1099, and income reconstruction techniques based on figures compiled by the Bureau of Labor Statistics. Id. ¶ 4. Franklin admits that she received income from a rental property, the California state courts, and the Administrative Office of the United States Courts during the 1993 and 1994 tax years. See Declaration of Justin Kim, Ex. 1, Transcript, August 22, 2008; Deposition of Mary A. Franklin at 24:23-25:13.
3. On or about July 7, 1997 and June 5, 2006, the IRS made assessments for tax, interest, and penalties against Franklin for the 1993 and 1994 tax years. See id. ¶¶ 4, 8, Exs. 10-11.
4. Franklin filed federal income tax returns for the 1995, 1996, 1998, 1999, 2000, and 2004 tax years. See Buhrows Decl. ¶ 5, Exs. 2-7.
5. On or about October 12, 1998, the IRS assessed the tax liabilities reported on Ms. Franklin's 1995 return and applicable interest and penalties. See id. ¶¶ 6, 8, Ex. 12. On March 20, 2000, the IRS assessed the tax liabilities reported on Ms. Franklin's 1996 return and applicable interest and penalties. See id. ¶¶ 6, 8, Ex. 13. On April 19, 2004, the IRS assessed the tax liabilities reported on Ms. Franklin's 1998 return and applicable interest and penalties. See id. ¶¶ 6, 8, Ex. 14. For each of these periods, the IRS ...