                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 21, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 10-2086
                                             (D.C. No. 1:06-CV-01216-WJ-RLP)
    JON EDELMAN, a/k/a Jon J. Edelman                     (D. N.M.)
    or John J. Edelman,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         Defendant Jon Edelman, appearing in this court pro se, appeals from the

district court’s Memorandum Opinion and Order granting summary judgment to

the United States on its federal tax assessments against him for tax years 1979

through 1982, 1987, 1992 through 1998, and 2003. We affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      On December 13, 2006, the Government filed its initial complaint seeking

to reduce to judgment federal tax assessments made on Mr. Edelman for tax years

1979 through 1985 and 1987. On April 16, 2007, the Government filed an

amended complaint, seeking to reduce to judgment sixteen years of federal

income tax assessments made against Mr. Edelman; that is, assessments for tax

years 1979 through 1985, 1987, 1992 through 1998, and 2003. In its opposed

second motion for summary judgment and memorandum in support, the

Government withdrew its claims against Mr. Edelman as to all of tax year 1983

and part of tax year 1985. See R., Vol. 1, at 586, 590 n.1, 594 n.7. The

Government moved for summary judgment on its remaining claims, arguing that

Mr. Edelman’s taxes remained unpaid and that the action was filed prior to the

expiration of the ten-year statute of limitations set forth in 26 U.S.C.

§ 6502(a)(1).

      On September 15, 2009, the district court issued its Memorandum Opinion

and Order granting the Government’s motion for summary judgment as to its

claims for tax years 1979 through 1982, 1987, 1992 through 1998, and 2003.

R., Vol. 1, at 851-52. The court concluded that the ten-year limitations period for

tax years 1979 through 1982 and 1987 was tolled during proceedings on

Mr. Edelman’s several requests for collection due process (CDP) hearings and

while Mr. Edelman was out of the country for more than six months, so the

limitations period had not expired as to those tax years when the Government

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filed its original complaint in December 2006. Id. at 839-40, 843-47, 851. The

court also concluded that the Government’s action was timely with regard to tax

years 1992 through 1998 and 2003 regardless of any tolling. See id. at 846-47,

851. The court denied summary judgment as to tax years 1984 and 1985,

however, holding that there was a genuine issue of material fact as to the tolling

of the statute of limitations for those years. Id. at 851-52. On January 28, 2010,

the district court granted the Government’s unopposed motion to sever the

pending claims for tax years 1984 and 1985, creating a new case and docket for

those claims. See id. at 879, 884-85. On March 11, 2010, the district court

entered a final and appealable judgment on the adjudicated claims. See id. at 886.

Mr. Edelman appeals.

      Mr. Edelman argues that: (1) the Government’s claims against him for tax

years 1979 through 1982, 1987, and 1992 through 1994 were untimely because his

requests for CDP hearings did not toll the ten-year statute of limitations in

26 U.S.C. § 6502(a) for bringing suit; (2) the district court failed to give him

proper notice under Jaxon v. Circle K Corporation, 773 F.2d 1138, 1139-40

(10th Cir. 1985), of the procedural requirements for defending against the

Government’s motions for summary judgment, which was compounded by the

court’s failure to compel discovery essential to his ability to show error in the

Government’s calculations of deficiencies, assessments, interest, and penalties;

and (3) Congress amended 26 U.S.C. § 6502 in the Internal Revenue Service

                                          -3-
Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685,

expressing its intent in the Conference Report that the ten-year statute of

limitations for collecting taxes should not be extended.

      “We review a grant of summary judgment de novo and apply the same legal

standard as the district court.” United States v. Botefuhr, 309 F.3d 1263, 1270

(10th Cir. 2002) (quotation omitted). Summary judgment is proper “if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (revised effective

December 1, 2010). “When applying this standard, we view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Botefuhr, 309 F.3d at 1270. We review the district court’s

order denying additional discovery for an abuse of discretion. See MediaNews

Group, Inc. v. McCarthey, 494 F.3d 1254, 1265 (10th Cir. 2007). Because

Mr. Edelman is pro se, we construe his pleadings liberally. Haines v. Kerner,

404 U.S. 519, 520-21 (1972) (per curiam).

      We have carefully reviewed the district court’s thorough Memorandum

Opinion and Order in light of the parties’ arguments, the record on appeal, and

the governing law. We are unpersuaded by Mr. Edelman’s claims of error; rather,

we conclude that the Government has demonstrated the lack of merit in his

appeal. Under the tax code, the limitations period was suspended (tolled) while

Mr. Edelman engaged in CDP proceedings and while he was out of the country

                                         -4-
for more than six months. 26 U.S.C. § 6330(e), 6503(c). He has failed to

demonstrate that there were any essential facts left to be determined on the issue

of the statute of limitations, or that the statutes relevant to the limitations

period—and the tolling thereof—were revised in his favor by the Internal

Revenue Service Restructuring and Reform Act of 1998. In addition, his response

to the Government’s first summary judgment motion shows that, unlike the pro se

litigant in Jaxon, 773 F.2d at 1140, he understood the procedural requirement to

submit evidentiary material to counter the Government’s showing. See R., Vol. 1,

at 233-64. He has not demonstrated that the district court abused its discretion by

failing to explain more fully the procedural requirements of responding to the

Government’s second summary judgment motion. Finally, Mr. Edelman has not

shown that the district court abused its discretion by refusing to compel additional

discovery from the Government. R., Vol. 1, at 505.

      The judgment of the district court is AFFIRMED.


                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Senior Circuit Judge




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