                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 08 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-35256

              Plaintiff - Appellee,              D.C. No. 2:05-cv-00810-JLR

  v.
                                                 MEMORANDUM*
DAVID L. ELMORE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                        Argued and Submitted May 4, 2011
                               Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       David Elmore appeals from the District Court’s judgment adjudicating the

amount of his tax liability and foreclosing the government’s lien on his home. The

Government argues that the District Court’s judgment is not final and not

appealable, but otherwise admits that the judgment should be vacated because its



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion for summary judgment was not supported by appropriate evidence. We

determine that we have jurisdiction, vacate the district court’s judgment, and

remand for further proceedings.

      In April 2005, the Government filed its “Complaint to Reduce Federal Tax

and Penalty Assessments to Judgment and Foreclose Federal Tax Liens.”

Although two individuals other than Elmore were alleged to have an interest in the

underlying real property, they were subsequently dismissed. The district court

entered an order in June 2006 deciding all issues in favor of the Government.

Before the District Court entered a final judgment, Elmore filed an appeal. We

eventually dismissed the appeal as premature.

      On March 14, 2008, the District Court entered its judgment, which was

prepared by the Government, finding in favor of the United States against Elmore

in the amount of $614,452.96, plus additional interest and penalties accruing from

February 8, 2008. The final paragraph of the judgment reads:

      It is further ORDERED AND ADJUDGED that the federal tax liens
      recorded against defendant David L. Elmore’s property in Kent,
      Washington, are hereby foreclosed. Pursuant to the Court’s Order
      dated June 2, 2006, the United States shall submit a proposed order
      for judicial sale of that property within 30 days of entry of judgment.

On March 24, 2008, Elmore filed a timely notice of appeal from the judgment.

      The Government asserts that the March 14, 2008 order is not final and


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appealable because the District Court has yet to have the property sold and to

distribute the proceeds. It is true that the underlying property has yet to be sold,

but this does not render the order unappealable. In 1882, the Supreme Court noted

that “[i]t has also been many times decided that a decree of sale in a foreclosure

suit, which settles all the rights of the parties and leaves nothing to be done but to

make the sale and pay out the proceeds, is a final decree for the purposes of an

appeal.” Grant v. Phoenix Mut. Life Ins. Co., 106 U.S. 429, 431 (1882). In

Budinich v. Becton Dickinson and Co., 486 U.S. 196, 199 (1988), the Supreme

Court reiterated that:

      A “final decision” generally is one which ends the litigation on the
      merits and leaves nothing for the court to do but execute the
      judgment. A question remaining to be decided after an order ending
      litigation on the merits does not prevent finality if its resolution will
      not alter the order or moot or revise decisions embodied in the order.

(Internal quotation marks and citations omitted). We have followed this approach.

See United States ex rel. Shutt v. Community Home & Health Care Servs. Inc., 550

F.3d 764, 766-67 (9th Cir. 2008)(holding that “a judgment on the merits of an FCA

claim is a separate, final, and appealable decision even where the district court has

retained jurisdiction over the collateral issue of allocating the FCA award between

the United States and the relator”). Our sister circuits appear to be in accord. See




                                           3
United States v. Sayer, 450 F.3d 82 (1st Cir. 2006); United States v. Stute Co., 402

F.3d 820 (8th Cir. 2005). See also 19 Moore’s Federal Practice § 202.02 (3d ed.).

      Here, following the entry of the March 14, 2008 judgment, which was

prepared by the Government, there was “nothing to be done but to make the sale

and pay out the proceeds.” The Government has not identified any issue between

it and Elmore, unresolved by the District Court’s judgment, that could be effected

by the sale of the property. We determine that the March 14, 2008 order is

appealable.

      We need not consider the merits of Elmore’s challenges to the district

court’s judgment because we determine that the Government’s confession of error

requires that we vacate the judgment and remand for further proceedings. The

Government represents that because the taxes were based not only on unreported

income, but also on income from rental property and from the sale of property,

which were not supported by third party information, the assessment was not

entitled to the “presumption of correctness that attaches to the assessment in . . . a

civil collection suit.” See United States v. Janis, 428 U.S. 433, 440-42 (1976). See

also Weimerskirch v. Commissioner, 596 F.2d 358, 361 (9th Cir. 1979); Palmer v.

IRS, 116 F.3d 1309, 1313 (9th Cir. 1997). Because the district court’s grant of




                                           4
summary judgment was based in part on this presumption of correctness, we accept

the Government’s confession of error and vacate the District Court’s judgment.

      We reject Elmore’s contention that the Government’s confession of error

supports the entry of summary judgment in his favor. As noted, the District

Court’s judgment in favor of the Government was based, in part, on the mistaken

conclusion that the assessment was entitled to the presumption of correctness. The

correction of this mistake should not bar the Government from attempting to show,

on the proper evidentiary basis, that Elmore is liable for unreported taxes.

      The District Court’s judgment is VACATED and the matter is

REMANDED for further proceedings.




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