                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 18 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 08-56282

              Plaintiff - Appellee,              D.C. No. 2:07-cv-06384-VBF-
                                                 PLA10/1/7
  v.

DAVID WHEELER, an individual; ALAN               MEMORANDUM*
BIRD, Trustee of City Holding Trust, as
nominee of David Wheeler,

              Defendants - Appellants,

  and

STATE OF CALIFORNIA FRANCHISE
TAX BOARD,

              Defendant.


                  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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.


      **
       The Honorable Barbara M. Lynn, United States District Judge for the
Northern District of Texas, sitting by designation.
                                          2
      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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