Thomas L. Ryther v. United States of America

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS L. RYTHER,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 11-56022
D.C. No. 2:10-cv-04581-JHN-JCG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Thomas L. Ryther appeals pro se from the district court’s summary
judgment for the Internal Revenue Service (“IRS”) in his action seeking a refund
of trust-fund recovery penalties imposed under 26 U.S.C. § 6672. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Buffalow v. United
FILED
OCT 04 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-56022 2
States, 109 F.3d 570, 572 (9th Cir. 1997). We affirm.
The district court properly granted summary judgment for the IRS on
Ryther’s refund claims because Ryther failed to establish a genuine dispute of
material fact as to whether he was a “responsible person” at Knight Steel who
acted willfully in failing to collect or pay over withheld trust-fund taxes. Purcell v.
United States, 1 F.3d 932, 936-38 (9th Cir. 1993) (discussing “responsible person”
and “willfulness” elements required for imposition of personal liability under
§ 6672).
The district court properly granted summary judgment for the IRS on its
counterclaim to reduce the unpaid assessments to judgment because the IRS
introduced evidence of the assessments, and Ryther failed to present sufficient
evidence to refute the presumption of their validity. See Oliver v. United States,
921 F.2d 916, 919-20 (9th Cir. 1990) (setting forth burdens of proof in tax
collection actions, and concluding that assessments were sufficiently supported by
evidence that corporate bookkeeper paid other bills with knowledge that corporate
taxes were unpaid). Contrary to Ryther’s contention, the district court properly
determined that there was no triable dispute as to whether the IRS properly sent
Ryther the notices required by § 6672(b). See 26 U.S.C. §§ 6672(b) & 6212(b)(1)
(requisite notice is sufficient if mailed to taxpayer’s last known address).

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11-56022 3
Ryther’s contentions that he is no longer liable for the trust-fund taxes
because of the IRS’s alleged failures to accept a partial payment and to collect the
taxes during Knight Steel’s bankruptcy proceedings are unpersuasive. See, e.g.,
Purcell, 1 F.3d at 939 (for government to be estopped, aggrieved party must
demonstrate “affirmative conduct going beyond mere negligence” and “that the
government’s act will cause a serious injustice and the imposition of estoppel will
not unduly harm the public interest” (citation and internal quotation marks
omitted)).
AFFIRMED.

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