United States of America v. David Wheeler, an individual

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID WHEELER, an individual; ALAN
BIRD, Trustee of City Holding Trust, as
nominee of David Wheeler,
Defendants - Appellants,
and
STATE OF CALIFORNIA FRANCHISE
TAX BOARD,
Defendant.
No. 08-56282
D.C. No. 2:07-cv-06384-VBF-
PLA10/1/7
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted October 7, 2010
Pasadena, California
FILED
NOV 18 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable Barbara M. Lynn, United States District Judge for the
Northern District of Texas, sitting by designation.
2
Before: WARDLAW and W. FLETCHER, Circuit Judges, and LYNN,**
District Judge.
David Wheeler appeals the district court’s grant of summary judgment
reducing IRS tax assessments to judgment and foreclosing tax liens on the house
held by CHT Trust as Wheeler’s nominee. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
The IRS introduced sufficient evidence to trigger the legal presumption of
correctness afforded to tax assessments. See United States v. Fior D’Italia, Inc.,
536 U.S. 238, 242 (2002). Wheeler never introduced evidence that clearly
demonstrated the proper amount of taxes he owes, and failed to overcome this
presumption. See United States v. Pierce, 609 F.2d 407, 408 (9th Cir. 1979) (per
curiam). The district court thus correctly granted summary judgment to the
government in reducing the IRS tax assessments to judgment.
Wheeler also challenges the authority of various IRS agents to make the
assessments against Wheeler and the authority of other IRS agents to authorize the
Department of Justice to file this suit. We have described similar claims as
“frivolous.” Palmer v. IRS, 116 F.3d 1309, 1311, 1314 (9th Cir. 1997). The
district court correctly rejected them.

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Finally, the district court was correct in concluding that the CHT Trust was
Wheeler’s nominee. Whether a certain level of control over land or goods as
established by state law “constitutes ‘property’ or ‘rights to property’ is a matter of
federal law.” Drye v. United States, 528 U.S. 49, 58 (1999) (quoting United States
v. Nat’l Bank of Commerce, 472 U.S. 713, 727 (1985)). Courts in this circuit have
generally agreed on a test for determining if property is held as a nominee. See,
e.g., United States v. Bell, 27 F. Supp. 2d 1191, 1195 (E.D. Cal. 1998); Towe
Antique Ford Found. v. IRS, 791 F. Supp. 1450, 1454 (D. Mont. 1992), aff’d, 999
F.2d 1387 (9th Cir. 1993). The district court correctly applied this test. The
district court thus correctly granted the government’s motion for summary
judgment foreclosing the tax lien on, and ordering sale of, the house held by CHT
Trust as Wheeler’s nominee.
AFFIRMED.

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