Government of Guam v. Danny Leon Guerrero

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOVERNMENT OF GUAM,
Plaintiff-Appellee,
v.
DANNY LEON GUERRERO ; J ENNIFER
R OSE R ABAGO ; C HRISTINE E.
EVANGELISTA; FREDDIE D.
AFLAGUE,
Defendants-Appellants,
and
M ONICA J ANE AFLAGUE; B ETTY
J ANE TORRE B LAS ,
Defendants.
No. 19-16793
D.C. No.
1:16-cv-00002
OPINION
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding
Argued and Submitted October 20, 2020
Honolulu, Hawaii
Filed August 31, 2021

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2 GOV ’T OF GUAM V. GUERRERO
Before: J. Clifford Wallace, Carlos T. Bea, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Wallace;
Dissent by Judge Bennett
SUMMARY*
Tax
The panel affirmed the district court’s judgment partially
ruling in favor of the Government of Guam, in Guam’s
action to reduce unpaid income tax liabilities to judgment
and foreclose on certain real property.
Taxpayer contended that Guam could not prove that the
Department of Revenue and Taxation (“the Department”)
acted within the three-year limitations period set forth in
26 U.S.C. § 6501(a) and 48 U.S.C. § 1421i(d)(i) (applying
federal income tax laws to Guam), because it could not
provide the relevant certificates of assessment to prove the
assessment date. The original certificates of assessment were
damaged. Consequently, Guam’s evidence of timeliness
consisted only of the Department’s internal documents and
employee testimony.
The panel held that the district court did not clearly err
in determining that Guam is entitled to the presumption of
regularity to establish the timeliness of the tax proceedings,
which taxpayer failed to rebut with clear, affirmative
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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GOV ’T OF GUAM V. GUERRERO 3
evidence. The panel further held that Guam established by a
preponderance of the evidence that the Department timely
assessed taxpayer’s liability, filed the tax lien on his real
property, and commenced this action.
Judge Bennett dissented because the record does not
clearly reveal any basis for invoking the presumption of
regularity; the Department’s longstanding procedures are
alone insufficient to raise the presumption; the district court
either failed to shift the burden of proof to taxpayer or did
not properly apply the presumption and determine whether
it was rebutted; and, while it is unclear which error or errors
were committed, all roads lead to reversal.
COUNSEL
Ronald I. Heller (argued), Torkildson Katz Hetherington
Harris & Knorek, Honolulu, Hawaii; Michael J. Berman,
Berman O’Connor & Mann, Hagåtña, Guam; for Petitioner.
Marianne Woloschuk (argued), Assistant Attorney General;
Leevin Taitano Camacho, Attorney General; Office of the
Attorney General, Tamuning, Guam; for Respondent.

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4 GOV ’T OF GUAM V. GUERRERO
OPINION
WALLACE, Circuit Judge:
Guam’s Department of Revenue and Taxation (the
Department) has concluded that Danny Leon Guerrero owes
approximately $3.7 million in unpaid taxes to the United
States Territory of Guam because he did not pay his full tax
liability for the tax years 1999, 2000, 2001, and 2002 after
belatedly filing his returns for these years. The parties
dispute when the Department assessed Leon Guerrero’s
taxes because the official records are missing, likely due to
water, mold, and termite damage at the storage facility where
they were housed. After assessing Leon Guerrero’s tax
liability, the Government of Guam (Guam) filed tax liens on
various parcels of real property that he owns with his former
spouse in joint tenancy. Guam then commenced this action
to collect Leon Guerrero’s tax deficiencies through
foreclosure of the tax liens.
Leon Guerrero does not contest that he owes Guam
unpaid taxes. However, Leon Guerrero contends that the
Department cannot prove that it timely assessed his taxes,
timely levied the tax liens on his share of the parcels of real
property, nor timely commenced its action. See 26 U.S.C.
§§ 6501(a), 6502(a)(1). Guam acknowledges that it does not
have the original certificates of assessment, but it invokes
the presumption of regularity based on the Department’s
standard procedure and internal documents to establish that
Guam acted within the statute of limitations. See United
States v. Chem. Found., 272 U.S. 1, 14–15 (1926) (“The
presumption of regularity supports the official acts of public
officers, and, in the absence of clear evidence to the contrary,
courts presume that they have properly discharged their
official duties”). After denying Leon Guerrero’s motion for
summary judgment, the district court conducted a bench

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GOV ’T OF GUAM V. GUERRERO 5
trial. The district court heard testimony elicited over two
days and partially ruled in favor of Guam, specifically on the
issues of the presumption of regularity and the timeliness of
the Department’s actions. Leon Guerrero appeals from the
district court’s adverse judgment.
We review the district court’s factual findings during a
bench trial for clear error, and we review its legal
conclusions de novo. Comm’r v. Duberstein, 363 U.S. 278,
291 (1960). A court’s findings are clearly erroneous if they
are “illogical, implausible, or without support in inferences
that may be drawn from the facts in the record.” United
States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009). We
review the district court’s conclusion regarding an
application of the statute of limitations de novo. United
States v. Workinger, 90 F.3d 1409, 1412 (9th Cir. 1996).
Finally, we review the district court’s determination that
Guam is entitled to the presumption of regularity for clear
error as a mixed question of law and fact where the nature of
our inquiry is essentially factual. See United States v. Lang,
149 F.3d 1044, 1047 (9th Cir. 1998) (acknowledging that the
standard of review for mixed question is typically de novo
“but, depending on the nature of the inquiry involved, may
be reviewed under a more deferential clearly erroneous
standard” such as where the issue is “an essentially factual
inquiry”); cf. Khyn v. Shinseki, 716 F.3d 572, 577 n.9 (Fed.
Cir. 2013) (reasoning that, while the presumption of
regularity is a rule of law, its application is triggered by
preliminary factual findings). Based on the following
reasoning, we hold that the district court did not commit
clear error when it found that the presumption of regularity
applied or that Leon Guerrero failed to rebut it. We also hold
that Guam established the timeliness of its assessment of
Leon Guerrero’s unpaid taxes, its filing of the tax lien, and
its commencement of this action through the internal

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6 GOV ’T OF GUAM V. GUERRERO
documents and the witness testimony from the Department’s
employees.
I.
Leon Guerrero late filed his Guam Territorial income tax
returns for the tax years 1999 and 2000 on March 21, 2003,
and the tax years 2001 and 2002 on April 17, 2003.
Sometime thereafter, the Department assessed Leon
Guerrero’s tax liability on the late returns. Ultimately, the
Department determined that Leon Guerrero owed Guam
approximately $3.7 million in unpaid taxes. Pursuant to
26 U.S.C. § 6501(a), Guam was required to assess Leon
Guerrero’s taxes within three years after he filed his returns.
As such, the Department was required to sign an assessment
of Leon Guerrero’s 1999 and 2000 tax returns by March 21,
2006, and an assessment of his 2001 and 2002 tax returns by
April 17, 2006. But, as previously mentioned, the
Department cannot locate the original certificates of
assessment after the warehouse storing the documents
experienced water damage, termites, and mold.
As a result, Guam’s evidence that the Department timely
assessed Leon Guerrero’s taxes instead consists only of the
Department’s internal documents rather than the certificates
of assessment. Guam argues that these internal documents
are sufficient evidence that the Department assessed Leon
Guerrero’s unpaid taxes in January 2006 and sent the
relevant notices before the three-year statute of limitations
expired. Guam relies on the Department’s internal registers
(record lists of delinquent taxpayers) known as TY53 and
TY69 registers, as well as an internal transmittal sheet sent
to the collections branch after the TY53 and TY69 notices
were sent to Leon Guerrero, to demonstrate both that it
followed standard procedure for purposes of the
presumption of regularity and to show the assessment dates.

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GOV ’T OF GUAM V. GUERRERO 7
The Department learned from Leon Guerrero at a
meeting on March 10, 2006, that the certificates and notice
had not reached him because they were sent to his ex-wife’s
address rather than his current address. During the meeting,
Leon Guerrero was given a final demand notice of the
Department’s intent to levy a tax lien on each of his real
properties, which he signed to confirm receipt. The
March 10, 2006, meeting occurred before the three-year
statute of limitations was set to expire on March 21. Leon
Guerrero met with Department officials again in August
2006 to discuss a repayment plan, but the Department
eventually decided to file a tax lien to protect Guam’s
interests. On August 15, 2006, the Department filed a tax
lien with the Department of Land Management.
The Department’s tax liens were filed on six parcels of
land that Leon Guerrero purchased between November 2000
and May 2002. On January 8, 2016, Guam brought its action
against Leon Guerrero to reduce his unpaid Guam income
tax liabilities to judgment. Guam also sought foreclosure of
Leon Guerrero’s interest in the six parcels of land. Leon
Guerrero did not contest the amount assessed.1 Instead,
Leon Guerrero’s primary argument has been that Guam
cannot prove that the Department acted within the statute of
limitations period because it cannot provide the relevant
certificates of assessment to prove the assessment date, even
1 Although Leon Guerrero insists that some of his underpayment
was his response to a $1.7 million debt that Guam owes Leon Guerrero
for services rendered, he has nonetheless paid some money toward the
approximately $3.7 million he owes Guam. We do not address this
matter, or the concomitant offset argument raised by Guam before the
district court, because the central focus of this appeal is whether the
Department timely assessed Leon Guerrero’s unpaid taxes and timely
placed the tax liens on Leon Guerrero’s share of real property.

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8 GOV ’T OF GUAM V. GUERRERO
though Leon Guerrero was personally served the final notice
of assessment within the three-year period.
The district court denied Leon Guerrero’s motion for
summary judgment where he had argued that Guam’s action
was time-barred due to the absence of the signed certificates
of assessment. Instead, the district court held that there was
a genuine dispute of material fact about whether the
Department followed its routine practices and completed the
tax assessments with the three-year period of limitations.
The district court next conducted a two-day bench trial.
Employees for the Department testified about the
Department’s procedure for processing and assessing tax
returns, as well as its notice process for delinquent taxes.
One witness explained that a certificate of assessment is a
Guam tax document that is akin to the United States Internal
Revenue Service’s (IRS) Form 4340, and that both are
consistent with IRS regulations although they are not
interchangeable. The employees detailed that the principal
difference between a Form 4340 and a certificate of
assessment is that the former includes a summary of tax
assessments with payments and the latter contains only an
assessment. In addition, the employees explained that a
certificate of assessment contains summary information
pertaining to all the taxpayers listed on the corresponding
TY53 (for example, if the return was for spouses who filed
jointly) whereas a Form 4340 is personal to the taxpayer and
not a summary.
According to testimony, the Department’s internal
process starts after a taxpayer submits a return and the
processing branch of the Department enters the data from the
return into the system. Next, the return is sent to the tax
assessment branch to confirm the accuracy of the self-
assessment by the taxpayer. If the tax assessment technician

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GOV ’T OF GUAM V. GUERRERO 9
determines that a taxpayer owes more than the amount
assessed in the tax return, the technician enters this
information into an accounts receivable in the Department’s
computer system. Entering the accounts receivable
information into the system generates a TY53 entry which is
compiled within the overall TY53 register and records the
date entered. The TY53 register is a list of delinquent
taxpayers, along with each taxpayer’s name, social security
number, assessment date, TY53 date, type of tax assessed,
taxable period, the assessment amount including interest and
penalties, and a code identifying the technician who
prepared the TY53 entry. The TY53 register is generated the
same day as the assessment. The witness specified that a
TY53 is “the first notice that gets sent out to the taxpayer,”
although the entire TY53 register is not sent to the taxpayer.
The witness emphasized that the information contained
in the TY53 is the same information as the certificate of
assessment because the TY53 is used to create the certificate,
and the TY53 cannot be changed after it has been generated.
The employee testified that when the TY53 register is
printed, the technician checks whether the taxpayer has
made any payments and signs a verification of the register.
The employee next explained that a TY69 register generates
a second notice of assessment that is sent to a taxpayer ten
days after the TY53 notice. A separate Department
employee confirmed that the Department’s assessment
branch transmits the notices to the collection branch a day
after the TY69 notice is mailed.
Ultimately, the district court ruled in favor of Guam, in
part. The district court held that the Department timely and
properly assessed Leon Guerrero’s tax liability. The district
court relied upon testimony from the Department’s
employees regarding why the documents were not available,

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10 GOV ’T OF GUAM V. GUERRERO
as well the Department’s procedures for assessing taxes and
the various registers used to maintain records of dates. The
district court held that the testimony from the Department’s
employees was “credible and consistent with the procedures
described in their declarations.” The district court also held
that the Department is entitled to the presumption of
regularity due to the absence of contrary evidence presented
by Leon Guerrero and failure “to expose any credibility
issues of inconsistencies” in the Department’s employees’
witness testimony. The district court further held, based on
its ruling that the assessments were timely, that the
Department’s tax lien on Leon Guerrero’s interest in the
properties was timely and valid.2
II.
Guam’s Territorial income tax mirrors the Internal
Revenue Code, including the code’s statute of limitations.
See 26 U.S.C. § 6501(a); 48 U.S.C. § 1421i(d)(1). In an
action to collect tax, the government bears the initial burden
of proof. The government can meet its burden by
introducing a tax assessment. United States v. Stonehill,
702 F.2d 1288, 1293 (9th Cir. 1983). The Department
generally follows the Internal Revenue Code and its
corresponding regulations when preparing an assessment.
The Internal Revenue Code sets forth the requirements for
making a tax assessment. See 26 U.S.C. § 6203; 26 C.F.R.
§ 301.6203-1. Pursuant to these requirements, Guam must
show that there is a dated record of the assessment signed by
2 The district court also ruled partly in favor of Leon Guerrero and
held that Guam had failed to prove that Leon Guerrero’s 2002 property
transfers were fraudulent conveyances under Guam law. We express no
opinion on the correctness of this finding of the district court because
Guam did not appeal it.

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GOV ’T OF GUAM V. GUERRERO 11
an assessment officer that contains all the necessary
information about the assessment, including the taxpayer’s
identity, the type of tax, and the amount owed to prove a
valid assessment. 26 U.S.C. § 6203; 26 C.F.R.
§ 301.6203-1.
Certificates of assessments qualify as “[r]ecords, reports,
. . . or data compilations, in any form, of public offices or
agencies, setting forth . . . matters observed pursuant to duty
imposed by law as to which matters there was a duty to
report,” and thus meet one of the definitions of public
records set forth in Rule 803(8) of the Federal Rules of
Evidence. Hughes v. United States, 953 F.2d 531, 539 (9th
Cir. 1992) (holding that a Form 4340 certificate of
assessment and payment is an official document that
established an assessment, in the absence of contrary
evidence). The certificates of assessment are not available
in this case. Guam, instead, submitted the TY53 register, the
TY69 register, and the internal transmittal sheet with other
evidence as to the method of their preparation by
government employees to show that the Department
followed its procedures to trigger the presumption of
regularity and demonstrate that the assessments occurred
within the limitations period.
III.
We hold that the district court did not clearly err when it
determined that Guam is entitled to the presumption of
regularity, which Leon Guerrero failed to rebut with clear,
affirmative evidence.3 We, therefore, also hold that Guam
3 Our dissenting colleague is correct that the district court may have
committed possible errors during its sparse analysis regarding the
presumption of regularity. We also acknowledge the limitations of the

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established by a preponderance of the evidence that the
Department timely assessed Leon Guerrero’s tax liability,
filed the tax lien on Leon Guerrero’s share of the real
properties, and commenced this action. However, it is
necessary for us to elaborate on the district court’s analysis
regarding the presumption of regularity.
We have held that a public actor is entitled to the
presumption of regularity where there is some evidence that
the public actor properly discharged the relevant official
duties, which an opposing party must rebut with clear,
affirmative evidence to the contrary. See Palmer v. IRS,
116 F.3d 1309, 1311 (9th Cir. 1997) (holding that the
Palmers “failed to produce any evidence that would counter
the normal presumption of regularity” after the government
presented some evidence to invoke the presumption); Huff v.
United States, 10 F.3d 1440, 1444 (9th Cir. 1993) (affirming
that “the IRS Forms 4340 introduced by the government
raised the presumption that the IRS had made the requisite
demands for payment” so that the government was entitled
to summary judgment on defendants’ claim that the IRS
failed to issue a notice of assessment and demand for
payment); Lewis v. United States, 279 U.S. 63, 74 (1929)
(holding that “all necessary prerequisites to the validity of
district court’s scant analysis. However, the clear error standard of
review is deferential. Our desire for perfection should not be the enemy
of the good. We, therefore, conclude that affirmance is appropriate here
because the record—including, but not limited to, internal documents
and testimony from employees of the Department about its procedures
to infer the assessment date—supports the district court’s findings
regarding the presumption of regularity, and its ultimate determination
that the presumption was available based on those findings. As a result,
the district court’s holding does not appear illogical, implausible, or
“without support in inferences that may be drawn from the facts in the
record.” Hinkson, 585 F.3d at 1262.

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GOV ’T OF GUAM V. GUERRERO 13
official action are presumed to have been complied with, and
that where the contrary is asserted it must be affirmatively
shown”) (citation omitted, emphasis added).
In Palmer, we held that the presumption of regularity
was available because the government presented redacted
copies of two letters. 116 F.3d at 1311. The Department,
like the IRS, is entitled to the presumption, so long as the
presumption is supported by some evidence. See id. As
previously observed, whether the presumption applies or has
been rebutted with clear and affirmative evidence to the
contrary are mixed questions of law and fact that may be
reviewed for clear error. The clear error standard is
significantly deferential, and clear error is not to be found
unless the reviewing court is “left with the definite and firm
conviction that a mistake has been committed.” Duberstein,
363 U.S. at 291 (citation and quotation marks omitted).
Such a definite and firm conviction requires us to find that
the district court’s determination was wrong because it was:
(1) illogical, (2) implausible, or (3) “without support in
inferences that may be drawn from the facts in the record.”
Hinkson, 585 F.3d at 1262. While we hold that the district
court did not commit clear error considering the significant
evidence available in the record, the court’s reasoning was
opaque and did not adhere to the proper steps of the analysis.
Therefore, we outline how the analysis should have been
conducted after the district court gathered the facts during
the bench trial.
First, the district court should have considered whether
there was some evidence, in the absence of the certificates
of assessment, that the Department had properly discharged
its official duty to assess Leon Guerrero’s unpaid taxes and
file its tax lien within the statute of limitations. See Huff,
10 F.3d at 1444. Instead, the district court assumed that the

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presumption was automatically available. Nonetheless,
there is evidence in the record that supports the conclusion
that the presumption of regularity was triggered, namely the
testimony describing the Department’s standard procedures,
the TY53 and TY69 registers, and the transmittal form to
collections regarding Leon Guerrero’s tax liability.
The trial record demonstrates that a tax assessment
technician with the Department entered Leon Guerrero’s tax
return information from tax years 1999 through 2002 into its
assessment system on January 12, 2006. The evidence
shows that the entry into the accounts receivable system,
which generated a TY53 entry in the register, created a TY53
notice, and issued the certificate for Leon Guerrero’s 1999,
2001, and 2002 tax returns on January 19, 2016. A separate
entry generated a TY53 entry in the register, created a TY53
notice, and issued the certificate for his 2000 tax returns on
January 27, 2006. Guam also offered, and the district court
accepted the TY69 register for the second notice sent to Leon
Guerrero; one TY69 notice was generated on January 30,
2006, for the 1999, 2001, and 2002 tax returns whereas the
other TY69 notice was generated on February 6, 2006, for
the 2000 tax returns. Furthermore, the district court accepted
Guam’s offered evidence of the Department’s internal
transmittal sheet, which was sent with the key documents to
the collections branch on January 31, 2006, and February 7,
2006. Finally, multiple Department employees submitted
declarations and testified about the Department’s internal
procedure to explain the various steps and how information
is gathered to generate the registers.
We agree with the district court that the TY53 and TY69
registers are highly probative. We hold that the district
court’s factual findings are sufficient to trigger the
presumption and establish that the assessments occurred on

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GOV ’T OF GUAM V. GUERRERO 15
the proffered dates. Cf. United States v. Zolla, 724 F.2d 808,
810 (9th Cir. 1984) (holding that a Postal Service form
certifying that the notices of deficiency had been mailed, and
an IRS form certifying that the taxes and penalties had been
assessed, were sufficient to satisfy the presumption of
regularity in the absence of official records that were
routinely destroyed by the IRS); United States v. Ahrens,
530 F.2d 781, 786–87 (8th Cir. 1976) (holding that a Postal
Service form triggered the presumption of regularity).
Although the district court discussed the presumption in
conjunction with its determination that the Department had
established the timeliness of its action, the district court did
not explicitly hold that this evidence was sufficient to trigger
the presumption of regularity. Instead, the district court
wrote that it relied on the credibility of the witness testimony
from the Department’s employees, as well as the testimony’s
consistency “with the procedures described” in the
witnesses’ declarations. The dearth of clear precedent and
the parties’ failure to brief properly the issue might have
contributed to the district court’s analysis. Regardless, the
district court’s conclusion is supported by the evidence in the
record and appropriate inferences.
The next step in our inquiry is whether Leon Guerrero
rebutted the presumption. The Supreme Court has used the
language of “clear evidence” and “contrary evidence . . .
[that] must be affirmatively shown.” Lewis, 279 U.S. at 73;
Chem. Found., 272 U.S. at 14–15. We, therefore, hold that
because Guam triggered the presumption with its evidence,
the burden shifted to Leon Guerrero to present clear,
affirmative evidence to rebut the presumption. We read the
district court’s judgment as holding that Leon Guerrero
failed to rebut the presumption during his cross-examination
of the Department’s employees. Before us, Leon Guerrero

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argues that the Department’s internal records are not
trustworthy due to alleged discrepancies, and he relies
heavily on the presumption of correctness rather than the
presumption of regularity. Leon Guerrero did not raise the
presumption of correctness or challenge the accuracy of the
assessments before the district court; therefore, this
argument is waived. Exxon Shipping Co. v. Baker, 554 U.S.
471, 487 (2008) (observing that a “federal appellate court
[generally] does not consider an issue not passed upon
below” absent a reason to exercise discretion and deviate
from this rule (citation omitted)). As a result, most of Leon
Guerrero’s arguments before us are not responsive to the
correct framework even though he attempted to cure his
error in subsequent briefing.4 In addition, Leon Guerrero’s
argument about discrepancies and alleged procedural
irregularities misrepresents the record, as the purported
difference in dates between the TY53 date and the
assessment date was clarified on multiple occasions through
witness testimony.5 Leon Guerrero’s efforts, therefore, fail
to rebut the presumption.
We agree with Guam that the case relied upon by Leon
Guerrero to assert that he rebutted the presumption of
regularity—Brafman v. United States, 384 F.2d 863 (5th Cir.
1967)—is easily distinguishable. First, the decision is not
binding upon our court. Second, Brafman involved a
4 But because Leon Guerrero’s subsequent briefing included more
than a response to Guam’s brief, those new arguments are also forfeited.
See Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971 F.3d 1042, 1047
n.3 (9th Cir. 2020).
5 There is a discrepancy between the assessment dates listed in
Amended Complaint and the testimony, but it does not alter the
determination that the Department complied with the statute of
limitations.

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GOV ’T OF GUAM V. GUERRERO 17
certificate of assessment that had not been signed by an
assessment officer as required by statute. Id. at 866. Thus,
that court found that the assessment was not valid, and the
action was barred by the statute of limitations. Id. at 867–
68. In contrast, this appeal centers on missing certificates of
assessments, not that the certificates were not signed. Here,
Guam’s evidence was sufficient to trigger the presumption
of regularity which regularly includes the signing of the
assessments. In addition, the assessment’s formal
certification in Brafman occurred after the limitations
period. Id. at 865–66. Therefore, the validity and time
distinction for Brafman is significantly different from the
context of this appeal because one date fell before the
limitations period and the other date fell after the period. Id.
In this appeal, the assessment dates occurred at least two
months before the relevant limitations period.
Leon Guerrero’s reliance on Huff is also misplaced. The
plaintiffs in Huff challenged the procedural validity of the
tax liens filed against them for tax deficiencies because they
claimed that the IRS failed to send them a notice of
deficiency, a notice of assessment and demand for payment,
and failed to assess their tax deficiencies in accordance with
section 6203. 10 F.3d at 1444. In sum, the plaintiffs in Huff
challenged the validity of the assessment rather than its
timeliness.
Overall, Leon Guerrero failed to present clear,
affirmative evidence to rebut the presumption of regularity
as to the preparation and service of the assessments before
the district court. His attempts to challenge the accuracy of
certain dates within the registers does not demonstrate that
the Department did not follow its procedures. The alleged
procedural irregularities are also not irregularities at all, but
a mischaracterization of the record. Consequently, Guam’s

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evidence establishes by a preponderance of the evidence that
the Department acted within the statute of limitations to
assess Leon Guerrero’s tax deficiencies and to file a tax lien
against his interest in the parcels of land.
IV.
We affirm the district court’s holdings that the
Department is entitled to a presumption of regularity. We
also affirm the district court’s conclusion that the
Department, therefore, timely assessed Leon Guerrero’s tax
liability within the three-year statute of limitations and
placed the tax liens within the ten-year statute of limitations.
See 26 U.S.C. §§ 6501, 6502.
AFFIRMED.
BENNETT, Circuit Judge, dissenting:
“The presumption of regularity supports the official acts
of public officers, and, in the absence of clear evidence to
the contrary, courts presume that they have properly
discharged their official duties.” United States v. Chem.
Found., 272 U.S. 1, 14–15 (1926). In essence, the
presumption “allows courts to presume that what appears
regular is regular, the burden shifting to the attacker to show
the contrary.” Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed.
Cir. 2011) (citation omitted).
Here, the district court concluded that Guam’s
Department of Revenue and Taxation (“Department”) was
“entitled to a ‘presumption of regularity’ with regard to [its]
actions in the absence of contrary evidence.” But in the very
next sentence, the district court evaluated whether the

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GOV ’T OF GUAM V. GUERRERO 19
Department had proven that it complied with its official duty
to timely assess a taxpayer’s liability by a preponderance of
the evidence:
This court finds that the [Department] has
shown, by a preponderance of evidence, that
(1) the [Department] assessed Leon
Guerrero’s tax liability for the tax years
1999–2002 on January 12, 2006, (2) the
[Department] recorded Leon Guerrero’s tax
liability for tax years 1999, 2001, and 2002 in
a TY53 register dated January 19, 2006,
(3) the [Department] recorded Leon
Guerrero’s tax liability for tax year 2000 in a
TY53 register dated January 27, 2006, and
(4) pursuant to the [Department’s]
longstanding procedures, the date a
taxpayer’s liability appears on a TY53
register is the date that a [Department]
employee signs a certificate of assessment for
that taxpayer’s liability for that year.
The district court concluded that “[g]iven that Leon
Guerrero’s tax liability for the 1999–2002 tax years
appear[ed] on [the] TY53s created in January of 2006, . . .
[the Department] properly assessed Leon Guerrero’s
liability within three years of the dates he filed his tax returns
for those years,” and “[t]hus, [the Department had] complied
with the three-year statute of limitations provided in
26 U.S.C. § 6501(a).”
In short, despite concluding that the Department was
entitled to a presumption of regularity absent contrary
evidence, the district court analyzed whether the Department
had proven its compliance with its duty to timely assess

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20 GOV ’T OF GUAM V. GUERRERO
Guerrero’s tax liability, and in doing so, the district court
relied not on the Department’s official duties, but on its
“longstanding procedures.” Further, the district court never
evaluated whether Guerrero had rebutted the presumption of
regularity with clear evidence. I believe this shows that the
district court committed at least one of several possible
errors.
First, perhaps the district court believed that the
Department’s “longstanding procedures” (presumably as to
the TY53s) themselves gave rise to the Department’s
presumption of regularity. But only “official duties” can
trigger the presumption of regularity. See Chem. Found.,
272 U.S. at 15 (emphasis added). Thus, if the district court’s
decision to invoke a presumption of regularity rested on
“longstanding procedures,” which are not required by either
statute or regulation, then the district court erred. Cf. Rock
Creek All. v. U.S. Fish & Wildlife Serv., 663 F.3d 439, 443
(9th Cir. 2011) (official agency regulation entitled the
agency to a presumption of regularity, even though the
agency did not comply with its own guidance
memorandum).
Second, and relatedly, perhaps the district court believed
that the Department’s “longstanding procedures,” paired
with the TY53s, laid the necessary evidentiary foundation
for the presumption of regularity. In other words, the district
court may have discussed the TY53s because it believed that
the Department’s official duty to timely assess a taxpayer’s
tax liability, though necessary, was alone insufficient to raise
the presumption that the Department timely assessed
Guerrero’s tax liability. This seems to be the interpretation
of the Department, which argues that it “is normally entitled
to a presumption of regularity . . . , so long as the
presumption is supported by some substantive evidence.”

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GOV ’T OF GUAM V. GUERRERO 21
This also seems to be the interpretation adopted by the
majority opinion, which explains that “a public actor is
entitled to the presumption of regularity where there is some
evidence that the public actor properly discharged the
relevant official duties.” Majority at 12.
Usually, our court applies the presumption of regularity
even with no affirmative evidence that a government agency
complied with its official duty. See, e.g., United States v.
Jabara, 618 F.2d 1319, 1326–27 (9th Cir. 1980) (presuming
that wiretap was properly authorized, even “in the absence
of some affirmative showing” that an official prerequisite for
the wiretap authorization had been met), overruled on other
grounds by United States v. DeBright, 710 F.2d 1404 (9th
Cir. 1983); United States v. Neckels, 451 F.2d 709, 712 (9th
Cir. 1971) (presuming that military appeal board
“considered all pertinent material in [the defendant’s] file,”
even though “[t]he record [was] completely devoid of
evidence on the nature of other matters considered by the
appeal board or the time devoted to an evaluation of [his]
appeal”), overruled on other grounds by United States v.
D’Arcey, 471 F.2d 880 (9th Cir. 1972) (en banc).
Sometimes, however, we do require the agency to
provide some affirmative evidence that it complied with its
official duty before giving it the benefit of the presumption.
See, e.g., Palmer v. IRS, 116 F.3d 1309, 1311 (9th Cir.
1997); Huff v. United States, 10 F.3d 1440, 1446–47 (9th
Cir. 1993). In such cases, the affirmative evidence can be
direct evidence of the agency’s fulfillment of its duty. See
Palmer, 116 F.3d at 1311 (letters were direct evidence that
civil action was instituted at the direction of delegates of the
Attorney General and the Secretary of the Treasury, thus
triggering the presumption that the government complied
with its official duties under 26 U.S.C. §§ 7401, 7403). Or

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22 GOV ’T OF GUAM V. GUERRERO
it can be indirect evidence, such as an official document
showing that the duty was fulfilled. See Huff, 10 F.3d
at 1446 (form 4340 showed that one taxpayer received
timely notice of assessment, thus triggering the presumption
that the government complied with its official duty under
26 U.S.C. § 6303(a)). But if the official document does not
itself show that the agency complied with its official duty, a
court may not so infer to apply the presumption.
For example, we vacated summary judgment in Huff as
to one of the two plaintiffs, reversing the district court’s
presumption, based on the plaintiff’s form 4340, that the IRS
had sent the plaintiff a timely notice of assessment. Id.
at 1446–47. Although the form showed the date of the
notice, it did not show the date of the assessment, so it did
not show that the IRS sent the notice within sixty days of the
assessment, as was its official duty under 26 U.S.C.
§ 6303(a). Id. The majority distinguishes Huff by limiting
its holding to the presumption of a timely notice of
assessment, Majority at 17, but we applied similar logic to
the presumption of a timely assessment in Jones v. United
States, 60 F.3d 584 (9th Cir. 1995). There, we held that the
IRS was not entitled to “the presumption of timely
assessment,” explaining that even though official documents
such as the form 4340 can establish the timeliness of an
assessment, “[o]ne must read the official documents to see
what they say.” Id. at 590. “Where the official certificates
do not support the proposition which must be proved,” they
do not support “the presumption of timely assessment.” Id.
Here, the Department has conceded that the TY53s do not
themselves show the date of the assessment. Instead, they
simply show the date of the TY53 entry. Thus, under the
reasoning of Huff and Jones, the district court erred by
relying on the TY53s—assuming that the Department

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GOV ’T OF GUAM V. GUERRERO 23
needed to produce some evidence that it complied with its
duty of timely assessment, as the Department concedes, the
majority holds, and Jones suggests. Unlike the missing
certificates of assessment, which would have shown the date
of the assessment, the TY53s show only the date that a
Department employee filled out a tax register, which
includes the tax liabilities of several different taxpayers.
Although a factfinder could rely on the TY53s and
“longstanding procedures” to infer that the Department has
proven that it did timely assess Guerrero’s tax liability, such
an inference is categorically different from using the TY53s
and “longstanding procedures” to trigger the presumption of
regularity, thereby shifting the burden to Guerrero to prove
by clear evidence that the Department did not timely assess
his tax liability.
Third, perhaps the district court simply failed to shift the
burden of proof to Guerrero despite its conclusion that the
Department was entitled to the presumption of regularity,
thus the district court’s discussion of what the Department
had shown by a preponderance of the evidence with the
TY53s. But “[t]hat is not how presumptions work. The
burden is on [the opposing party] to provide ‘clear evidence’
that contradicts a properly invoked presumption of regularity
. . . .” B.R. v. Garland, 4 F.4th 783, 791 (9th Cir. 2021). If
the district court failed to shift the burden to Guerrero, it did
not properly apply the presumption (assuming it actually
intended to apply it).
Finally, the district court also erred by failing to analyze
whether Guerrero rebutted the presumption of regularity
with clear evidence. Its observation that “Leon Guerrero’s
cross examination failed to expose any credibility issues or
inconsistencies in [the Department’s] witnesses’
testimon[ies]” hardly amounts to a conclusion that Guerrero

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24 GOV ’T OF GUAM V. GUERRERO
presented no clear evidence himself to rebut the
presumption.
The majority ignores these errors, focusing on what the
district court could or should have done, rather than what the
district court did. The majority states that the district court
“should have considered whether there was some evidence
. . . that the Department had properly discharged its official
duty,” instead of “assum[ing] that the presumption was
automatically available.” Majority at 13–14 (emphasis
added). And the majority “read[s] the district court’s
judgment as holding that Leon Guerrero failed to rebut the
presumption,” without pointing to any part of the judgment
that so held. Majority at 15.
This attempt to provide the requisite analysis and
conclusions to invoke the presumption of regularity on
appeal, even though they were absent from the district
court’s judgment itself, is impermissible here. As the
majority holds, we review the district court’s decision to
apply the presumption of regularity for clear error as an
“essentially factual” inquiry. Majority at 5. When applying
that standard, “we cannot affirm a district court whose
findings are ‘skeletal’ or conclusory unless the record . . .
clearly reflects the basis for the trial court’s determinations.”
Unt v. Aerospace Corp., 765 F.2d 1440, 1445 (9th Cir.
1985). As explained above, the record does not clearly
reveal any basis for invoking the presumption of regularity,
such as an official document showing that the Department
timely assessed Guerrero’s liability. The TY53s and the
Department’s “longstanding procedures” are alone
insufficient. At bottom, then, although it is unclear which
error or errors were committed, the district court committed
at least one clear error. All roads lead to reversal, and thus I
respectfully dissent.

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