                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                              NOV 26 1997
                       UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                    Clerk
                                 TENTH CIRCUIT
                       ___________________________________

UNITED STATES OF AMERICA,              )
                                       )
              Plaintiff-Appellant,     )
vs.                                    )
                                       )
DAN C. SIMONS, SALLY J. SIMONS, )                No. 96-4093
JOLENE J. SMITH as Trustee of the      )         No. 95-4200
CHARLEMAGNE TRUST, and                 )
HAROLD MARK SIMONS, DAN C. )
SIMONS, and SALLY J. SIMONS            )
as Trustees of the DAN C. SIMONS       )
EQUITY TRUST,                          )
                                       )
              Defendants-Appellees.    )
                        ___________________________________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF UTAH
                            (D.C. No. 92-CV-1071)
                    ___________________________________

Curtis C. Pett, (Ann B. Durney, with him on the brief), Attorneys, Tax Division, United
States Department of Justice, Washington, D.C., for Plaintiff-Appellant.

Patricia D. White, Parsons, Behle & Latimer, Salt Lake City, Utah, for Defendant-
Appellee.
                       ___________________________________

Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.
                  __________________________________

KELLY, Circuit Judge.
                     ___________________________________

      The government appeals from the district court’s grant of summary judgment in
favor of Dan and Sally Simons (taxpayers) on assessments against them for the 1974 tax

year. We conclude the district court’s interpretation of 25 U.S.C. § 6502 conflicts with

our decision in Foutz v. United States, 72 F.3d 802 (10th Cir. 1995), and believe a

genuine issue of material fact exists as to whether or when the government signed

taxpayers’ offer in compromise. Our jurisdiction arises under 28 U.S.C. § 1291, and we

reverse and remand for further proceedings.



                                        Background



       On July 25, 1983, the IRS assessed a $17,071 deficiency in income tax and an

$854 addition to tax against taxpayers for tax year 1974. At that time, the statute of

limitations for collection of assessed taxes required the government to file suit within six

years of the assessment. See 26 U.S.C. § 6502. Thus, the statute of limitations for

reduction of taxpayers’ 1974 assessment was to expire on July 25, 1989. On January 24,

1989, taxpayers and the IRS executed a Form 900, or “Tax Collection Waiver,” agreeing

to extend the collection period to October 25, 1989. By its terms, the waiver provided

that if an offer in compromise was made by taxpayers before the extended limitations

period expired, the period would again be extended by the number of days the offer was

pending plus one year.

       Taxpayers concede they filed an offer February 2, 1989, which was rejected by the


                                              2
IRS on June 18, 1990. Taxpayers claim the offer was not signed by a representative of

the service. The government claims the offer was signed by Revenue Officer Don

Thurman and was produced to taxpayers during his deposition. The offer, if valid,

extended the period for collection to June 18, 1991.

       Subsequently, on November 5, 1990, Congress amended 26 U.S.C. § 6502(a) to

lengthen the limitations period for collections from six to ten years. See Omnibus Budget

Reconciliation Act of 1990, Pub. L. No. 101-508, § 11317(a), 104 Stat. 1388-458 (1990).

The amendment also provided that taxes assessed before the November 5, 1990 effective

date would be subject to the extended period “if the period specified in section 6502 of

the Internal Revenue Code of 1986 (determined without regard to the amendments made

by subsection (a)) for collection of such taxes has not expired as of such date.”

§ 11317(c)(2), 104 Stat. at 1388-458.

       The government then filed this action for collection of the 1974 assessment on

December 14, 1992. Taxpayers moved for summary judgment, arguing that the original

six year limitations period in § 6502(a)(1) had passed and that the subsequent amendment

extending the limitations period to ten years did not apply to them. The district court

agreed, holding that the 1990 amendments do not apply to parties who have agreed to

extend the limitations period under § 6502(a)(2), and granted their motion. See United

States v. Simons, 864 F. Supp. 171, 173-74 (D. Utah 1994).

                                        Discussion


                                             3
       We review the grant or denial of summary judgment de novo, applying the same

legal standard used by the district court. See Wolf v. Prudential Ins. Co. of Am., 50 F.3d

793, 796 (10th Cir. 1995). Summary judgment is appropriate if there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       To meet the burden of production required to support summary judgment, the

movant “need only point to those portions of the record that demonstrate an absence of a

genuine issue of material fact given the relevant substantive law.” Thomas v. Wichita

Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex, 477 U.S.

at 322-23). Summary judgment will then lie if the movant establishes entitlement to

judgment as a matter of law “given [the] uncontroverted, operative facts.” Id. (citing

Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 251 (1986)). “Factual disputes that are

irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. The

substantive law of the case determines which facts are material. See id.

       Where a movant has met the initial burden required to support summary judgment,

the non-movant then “must either establish the existence of a triable issue of fact under

Fed. R. Civ. P. 56(e) or explain why he cannot . . . under Rule 56(f).” Pasternak v. Lear

Petroleum Exploration, 790 F.2d 828, 832 (10th Cir. 1986). Conclusory allegations made

by a non-movant will not suffice. See Allen v. Muskogee, Oklahoma, 119 F.3d 837, 843-


                                             4
44 (10th Cir. 1997). Instead, “sufficient evidence (pertinent to the material issue) must be

identified by reference to an affidavit, a deposition transcript, or a specific exhibit

incorporated therein.” Thomas, 968 F.2d at 1024.

       Interpreting the 1990 amendments to 26 U.S.C. § 6502, the Code’s limitation

period for collections, the district court determined that the amendment extending the

collection period to ten years did not apply to taxpayers. Their offer, which “set the end

of the limitations period at a date certain,” governed the suit’s timeliness, even where the

effective date of the amendment fell within that period. See Simons, 864 F. Supp. at 173.

In Foutz, 72 F.3d at 805, we recently addressed precisely this issue, and held that

§ 11317(c) extends the limitations period to ten years where an extension of the

limitations period contained in a tax collection waiver had not expired as of the

November 5, 1990 effective date of the amendments. See id. at 805-06. Thus, under

Foutz, the district court erred, since the November 5, 1990 effective date would have been

well within the June 18, 1991 limitations period the offer provided.

       Taxpayers now assert, however, that the extension contained in the offer was

ineffective because it was not signed by a representative of the IRS. The district court

was squarely confronted with this issue in taxpayers’ motion for partial summary

judgment, see Aplt. App. at 30-33, but because it found taxpayers were entitled to

summary judgment on a different ground, did not address it. We may review and affirm a

grant of summary judgment on any ground adequately presented to the district court and


                                               5
supported by the record, even though not relied on by the district court. See Bolden v.

PRC Inc., 43 F.3d 545, 548 (10th Cir. 1994), cert. denied, 116 S. Ct. 92 (1995); Griffith

v. State of Colorado, Div. of Youth Servs., 17 F.3d 1323, 1328 (10th Cir. 1994). Since

taxpayers properly raised this issue below and pressed it on appeal, and the government

had ample notice and opportunity to respond, we examine it here.

       Taxpayers’ statement of material undisputed facts contained in their motion for

partial summary judgment asserted that “the Internal Revenue Service did not sign for or

accept that part of the Offer in Compromise Agreement form that provides for waiver of

the Statute of Limitations.” Aplt. App. at 26. In the face of an affirmative defense that

the action was barred, the government had the burden of proving the validity of a waiver

of the statute of limitations. See United States v. Conry, 631 F.2d 599, 600 (9th Cir.

1980); United States v. Borchardt, 470 F.2d 257, 261 (7th Cir. 1972). Taxpayers’

statement that the government failed to sign the offer provided the government with

ample notice that taxpayers intended to require the government to produce proof on this

issue. Thus, for purposes of summary judgment, the taxpayers shifted the burden of

producing evidence of written assent to the government. See Howell Petrol. Corp. v.

Leben Oil Corp., 976 F.2d 614, 621 (10th Cir. 1992).

       In response, the government argues taxpayers’ counsel conceded the issue at the

motion hearing, allowing the district court to treat the validity of the waiver as an

undisputed fact. Although we do not believe counsel conceded the issue, we do believe


                                              6
counsel’s statement created a factual dispute regarding the validity of the offer. To defeat

summary judgment, statements made by counsel at oral argument must either rise to the

level of a stipulation, which is treated for purposes of Rule 56 as an admission, see F&D

Property Co. v. Alkire, 385 F.2d 97, 100 (10th Cir. 1967), or a concession of the issue,

which is binding on the party who concedes. See United States v. Ibarra, 920 F.2d 702,

706 (10th Cir. 1990), vacated on other grounds, 502 U.S. 1 (1991). Counsel’s statement

at the motion hearing clearly indicates that an offer in compromise signed by the

government was produced to taxpayers during Revenue Officer Don Thurman’s

deposition. See Aplt. Supp. App. at 2. Such statements may, in the court’s discretion, be

considered “admissions” for summary judgment purposes. See Guidry v. Sheet Metal

Workers Int’l Assoc., 10 F.3d 700, 716 (10th Cir. 1993). However, though counsel

admitted that a signed offer was produced, thus controverting taxpayers’ assertion that the

offer was not signed for purposes of summary judgment, the record clearly indicates

counsel did not intend to concede the issue entirely.

       The fact that this document is now surfacing is -- I believe one of the
       reasons we have a statute of limitations -- here we are some almost 20 years
       after the return was filed and we are dealing with documents surfacing.
       This is a case where Mr. Simons had filed three or four or actually four or
       five Freedom of Information Act Requests . . . to even receive responses
       from the Internal Revenue Service that the . . . 656 that was signed by the
       government, did not exist. He actually received a copy of an unsigned one
       through the Freedom of Information [sic]. There is even a letter from the
       district director saying that no such document exists, but in fact we now
       have a document that reflects the fact that there was an agreement.
               So we would like to state for purposes today of going forward, just
       assuming arguendo that there was executed agreement by the taxpayer and

                                             7
         the Internal Revenue Service . . . that the statute of limitations would be
         extended for that period of time.

Aplt. Supp. App. at 2-3. Accordingly, though counsel’s statement that a signed offer in

compromise had been produced properly controverted taxpayers’ assertion that the offer

was not signed for purposes of summary judgment, we do not believe it rises to the level

of a concession of the issue sufficient to preclude further factual inquiry by the district

court.

         Under current Treasury regulations, the submission of an offer in compromise does

not automatically stay collection of a tax liability. See Treas. Reg. § 301.7122-1(d)(2)

(1967). Instead, an extension of the statute of limitations only “become[s] effective upon

execution of the agreement by both the taxpayer and the district director.” Treas. Reg. §

301.6502-(a)(2) (1997) (as amended in 1992). These regulations plainly indicate “the

event which makes the waiver operative is the signature of the District Director. It is his

act in signing the waiver that stops the limitations clock.” Rohde v. United States, 415

F.2d 695, 698 (9th Cir. 1969); accord United States v. Cook, 494 F.2d 573, 574-75 (5th

Cir. 1974). We give controlling weight to an agency’s interpretation of statutory

provisions it administers unless it is “arbitrary, capricious, or manifestly contrary to the

statute.” New Mexico Dep’t of Human Servs. v. Department of Health and Human Servs.

Health Care Fin. Admin., 4 F.3d 882, 884 (10th Cir. 1993). Because the parties have

placed this material fact in dispute, we must remand to the district court for further

proceedings to determine if or when the government signed taxpayers’ offer.

                                                8
REVERSED AND REMANDED.




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