                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 12 2004
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                 Plaintiff-Appellant-
                 Cross-Appellee,
                                                   Nos. 03-1442 & 03-1459
    v.                                           (D.C. No. 02-BB-1231 (CBS))
                                                           (D. Colo.)
    COLORADO MUFFLERS
    UNLIMITED, INC.,

                 Defendant-Appellee-
                 Cross-Appellant.


                             ORDER AND JUDGMENT           *




Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       The principal question we are asked to decide in this case is whether the

district court erred in awarding recovery of erroneously refunded taxes to the

United States, but denying recovery of prejudgment interest on such taxes, on the

basis that the government did not adequately prove the amount of prejudgment

interest owed. Because prejudgment interest on erroneous tax refunds is

statutorily mandated and the amount of such interest is a matter of law, we hold

the district court erred in not amending its judgment to award prejudgment

interest.

       Accordingly, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm

the district court’s underlying award, reverse its denial of the government’s Fed.

R. Civ. P. 59(e) motion to amend, and remand the case to the district court,

directing it to amend its judgment to award to the United States prejudgment

interest as required by 26 U.S.C. § 6602.


                                I. BACKGROUND

       On June 28, 2002, the United States filed a complaint seeking to recover

$88,768.70 of employment and unemployment taxes erroneously refunded to

Colorado Mufflers Unlimited, Inc. (Colorado Mufflers) as well as prejudgment

interest on these funds. On May 19, 2003, the district court granted the United

States’ summary judgment motion, awarding it $88,768.70. At the same time,

however, the court ordered the United States to file a brief “explaining and

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quantifying the amount of [prejudgment] interest claimed and the basis of

entitlement.” Aplt. App. at 45.

       The United States’ brief on the matter set forth the relevant statutory

sections mandating recovery of interest on erroneous tax refunds and included, as

an exhibit, a declaration from Andrew Jones, an Internal Revenue Service (IRS)

Technical Services Advisor, whose duties with the IRS included making interest

computations. Mr. Jones stated in his declaration that he inputted into a computer

program both the dates the erroneous refunds were made and the amount of each

erroneous refund. The program then “perform[ed] interest computations applying

the appropriate interest rates, compounded daily,” and calculated that the total

amount of prejudgment interest due to the United States was $15,232.24.      Id. at

50. Mr. Jones’s attached to his declaration ten pages of computer printouts

showing the ten erroneous refunds and the amount of interest that had accrued on

each through June 4, 2004, the “Interest Computation Date.”

       Colorado Mufflers, in its response brief, agreed the United States had the

right to recover interest on erroneous refunds at the “underpayment interest rate

as established under 26 U.S.C. [§] 6621” and that the “underpayment interest

rate” was the “‘Federal Short-term rate’” plus three percentage points.   Id. at 61.

But Colorado Mufflers argued that the government’s brief and the attached

declaration were insufficient to support the government’s claim for prejudgment


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interest because they failed to “set forth the applicable Federal short-term rate, or

the total interest rate, which the calculations are based on.”    Id. at 62. The United

States replied to Colorado Mufflers’ response, noting that Colorado Mufflers did

not dispute the correctness of the interest calculations and asking the court to take

judicial notice of the federal short-term interest rates published by the IRS in its

revenue rulings.

       The district court denied the United States’ request for an award of

prejudgment interest, finding it had failed to comply adequately with the district

court’s May 19, 2003, order to explain and quantify “the amount of interest

claimed and the basis of entitlement.”      Id. at 68. The district court stated that the

United States should have provided “a spread sheet or similar document

containing and explaining the manner in which the claimed interest was

computed.” Id. Thus, on August 8, 2003, the district court entered judgment

(1) granting the United States’ motion for summary judgment, (2) denying the

United States’ request for prejudgment interest, (3) entering judgment against

Colorado Mufflers in the amount of $88,768.70, and (4) awarding post-judgment

interest as provided by law and costs to the United States.

       The United States subsequently filed a motion under Fed. R. Civ. P. 59(e),

which it titled a motion to reconsider but which the trial court treated as a motion

to alter or amend the judgment (“motion to amend”). Attached to the motion to


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amend were (1) an IRS revenue ruling containing tables with the relevant interest

rates for the relevant time period, and (2) a second declaration of Andrew Jones,

including computer printouts showing not only the total interest calculated for

each erroneous refund but also the relevant interest rate and amount of interest

computed for each respective quarter. The rates used by the computer program

match the rates set forth in the revenue ruling attached to the motion to amend.

The district court refused to consider the documentation attached to the motion to

amend, treating it as additional evidence that should have been submitted prior to

the issuance of the judgment. On August 26, 2003, the district court denied the

government’s motion to amend, reiterating that it could not “make an award of

interest without sufficient information upon which to base such an award.”     Id. at

113.

       On appeal, the United States challenges: (1) the district court’s denial of

the United States’ request for prejudgment interest on the $88,768.70 award, and

(2) the district court’s August 26, 2003, denial of the United States’ Fed. R. Civ.

P. 59(e) motion to amend. Colorado Mufflers cross-appeals, challenging the

district court’s $88,768.70 award to the United States and the award’s attendant

post-judgment interest and costs.




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                                    II. ANALYSIS

A. Standard of Review

      We review de novo the district court’s summary judgment rulings.
      We thus apply the same legal standard used by the trial court.
      Summary judgment is appropriate when the evidence indicates that
      there is no genuine issue of material fact and that the moving party is
      entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
      examining the record we review the evidence in the light most
      favorable to the party opposing the motion for summary judgment.

Schmidt v. Farm Credit Servs. , 977 F.2d 511, 514 (10th Cir. 1992) (internal

citation omitted). In this case, the material facts are not disputed–only the legal

conclusions that may properly be drawn from such facts are at issue.    See

generally Goichman v. City of Aspen , 859 F.2d 1466, 1467-68 (10th Cir. 1988).

We review for abuse of discretion the district court’s ruling on the United States’

Fed. R. Civ. P. 59(e) motion to amend.    Computerized Thermal Imaging, Inc. v.

Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir. 2002).

B. Colorado Mufflers’ Cross-Appeal

      Because we find it meritless, we first address Colorado Mufflers’ argument

on cross-appeal that summary judgment was improper because it was “based on an

affidavit from the plaintiff’s attorney with attachments [setting forth the tax

amounts paid and then refunded] which were not original or certified documents,

and did not comply with Fed. R. Civ. P.56(e).” Aplee./Cross-Aplt. Br. at 3.



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      In the district court, Colorado Mufflers did not object to the affidavits of

which it now complains, nor did it dispute that refunds had been made or the

amounts of the refunds. Colorado Mufflers approved by signature a scheduling

order filed November 7, 2002, listing as an “undisputed fact” that the IRS

refunded $88,768.00 to Colorado Mufflers. Aplt. App. at 20-21. Further, the

United States listed a refund amount of $88,768.70 as “undisputed” in its

memorandum in support of summary judgment. In its response, Colorado

Mufflers conceded that “[t]he [United States] has correctly set forth the

undisputed facts in its memorandum,” and also attached an affidavit from its

Secretary-Treasurer asserting, among other things, that Colorado Mufflers

received refunds from the IRS totaling $88,768.60.     1
                                                           Aplt. Supp. App. at 1, 18-19.

      Colorado Mufflers may not now complain about the evidentiary basis for

the refund amounts when it not only failed to raise this objection in the district

court, but previously agreed with the correctness of those amounts.       See Noblett v.

Gen. Elec. Credit Corp. , 400 F.2d 442, 445 (10th Cir. 1968) (“An affidavit that

does not measure up to the standards of 56(e) is subject to a motion to strike; and

formal defects are waived in the absence of a motion or other objection”); Fed. R.


1
       We are unaware of the reason for the slight discrepancies between the
refund amounts listed in the scheduling order, the United States’ memorandum in
support of summary judgment, and the affidavit attached to Colorado Mufflers’
response. The parties do not address these discrepancies and they are irrelevant
to our disposition.

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Evid. 103 (error may not be predicated on admission of evidence to which an

objection was not raised).

C. The United States’ Direct Appeal

       The United States argues, among other things, that the district court erred

in denying its motion to amend because an award of interest is mandated by

26 U.S.C. § 6602 and the court had no discretion to deny such award. We agree.

       Under 26 U.S.C. § 7405, the United States may bring a civil action to

recover an erroneous tax refund. Further, “[a]ny portion of an internal revenue

tax . . . which has been erroneously refunded, and which is recoverable by suit

pursuant to [26 U.S.C.] section 7405, shall bear interest at the underpayment rate

established under [26 U.S.C.] section 6621 from the date of the payment of the

refund.” Id. § 6602. The “[u]nderpayment rate” is the sum of the “Federal short-

term rate” plus three percentage points.   Id. § 6621(a)(2).

       The basis of the district court’s refusal to award prejudgment interest to the

United States was the United States’ failure to provide the district court with the

“applicable Federal short-term rate or the total interest rate upon which [the]

United States’ calculations [were] based.” Aplt. App. at 68. The court therefore

determined it had “no basis upon which to evaluate the accuracy of the amount of

interest sought by the United States” and that it could not, therefore, make an

award of interest.   Id. When the government subsequently presented the district


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court more specific interest calculations in its motion to amend, the court denied

the motion, observing that “[m]otions under 59(e) must either clearly establish a

manifest error of law or must present newly discovered evidence.”        Id. at 113

(quoting United States ex rel. Noyes v. Kimberly Constr., Inc.      , 43 Fed. Appx. 283,

287 (10th Cir. July 25, 2002) (unpublished)). The district court, treating the more

specific calculations as evidence that could have and should have been presented

prior to judgment, then refused to consider them.     Id. at 114.

       An erroneous refund recoverable by suit “    shall bear interest at the

underpayment rate established under section 6621 . . . .” 26 U.S.C. § 6602

(emphasis added). While “in general, the award of prejudgment interest in a case

under federal law is a matter left to the sound discretion of the trial court[,]”

Purcell v. United States , 1 F.3d 932, 942-43 (9th Cir. 1993) (quotation omitted),

“[i]t is clear . . . that this general rule may be trumped by the command of a

federal statute.”   Id. at 943. In Purcell , the Ninth Circuit considered whether the

government was entitled to an award of prejudgment interest under the portion of

26 U.S.C. § 6601(e)(2)(A) that, at the time, read: “[i]nterest shall be imposed . . .

in respect of any assessable penalty . . . only if such assessable penalty . . . is not

paid within 10 days from the date of notice and demand therefor, and only . . . for

the period from the date of the notice and demand to the date of payment.”




                                           -9-
Purcell , 1 F.3d at 943 (alteration in original). The Ninth Circuit held that the

district court:

       was faced with a binding statutory directive to allow interest to the
       government as of the time notice and demand was made upon
       Purcell. The court was not required–indeed, was not permitted–to
       exercise its discretion regarding the award of interest. All that was
       required was to establish the date of notice and demand.

Id.

       In this case, the district court mistakenly treated the question of the amount

of interest as a factual question that the government had the burden of proving,

stating “[p]roviding an interest calculation sufficient to meet a burden of proof is

not unlike ‘showing your work’ in fifth grade arithmetic.” Aplt. App. at 68. This

was error because, here, prejudgment interest is mandated by statute and the

amount owed is a matter of law, not evidence.     See United States v. Schroeder ,

900 F.2d 1144, 1150 n.5 (7th Cir. 1990) (interpreting the mandatory interest

provision of 26 U.S.C. § 6601(e)(2) and noting that the amount of interest “is not

something the government must prove at trial”);    see also United States v. Boyce ,

148 F. Supp. 2d 1069, 1090 (S.D. Cal. 2001) (“Because interest on assessments

and penalties are [sic] mandatory under the Internal Revenue Code, the Court

finds that the significance of [the I.R.S. employee’s] declaration [as to amount of

interest owed] was only to allow the Court to render judgment in a specific dollar




                                          -10-
amount and does not open the door to discovery on the amount of interest the

[taxpayers] owe.”).

      Therefore, once the court determined that an erroneous refund had been

made and that recovery by the government was proper, it was required by statute

to award prejudgment interest on such amount and it was a manifest error of law

not to do so. Consequently, the district court abused its discretion in not granting

the United States’ motion to amend and amending its judgment to correct this

error. Cf. United States v. Faulkner , 119 F.R.D. 390, 390-91 (N.D. Ill. 1988)

(holding, in the context of a Fed. R. Civ. P. 60(a) motion asking the district court

to correct its clerical mistake of omitting statutorily mandated prejudgment

interest: “When a statute mandates and defines an award of interest, the omission

of such interest from a judgment order is exactly the sort of mistake that Rule

60(a) was designed to correct . . . .”). Here, the United States’ motion to amend

included the specific interest rates the district court felt should have been

included in the government’s initial briefs and such calculations could have been

used by the court in amending its judgment to make a specific interest award.

                                 III. CONCLUSION

      The August 8, 2003, judgment of the district court is AFFIRMED IN PART

as to its award of $88,768.70 and the attendant post-judgment interest and costs.

WE REVERSE the district court’s denial of the government’s Fed. R. Civ.


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P. 59(e) motion, and REMAND to the district court, directing it to amend its

judgment to award prejudgment interest to the United States as required by

26 U.S.C. § 6602.



                                                   Entered for the Court



                                                   John C. Porfilio
                                                   Circuit Judge




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