                                                                            FILED
                           NOT FOR PUBLICATION                              JUN 11 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-56722

              Plaintiff - Appellee,              D.C. No. 3:07-cv-01969-H-AJB

  v.
                                                 MEMORANDUM*
GEORGE STEVEN PARKER,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                          Submitted December 17, 2013**
                             San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       George Steven Parker appeals the district court’s grant of summary

judgment to the United States in its suit seeking to reduce to judgment Parker’s

federal income tax liability. Representing himself on appeal, Parker claims that he


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
introduced evidence creating a triable issue of fact respecting (1) the government’s

tax assessment, (2) whether this assessment (if valid) was discharged in his

personal bankruptcy, and (3) the validity of the government’s liens on his pre-

bankruptcy property.

      We review Parker’s appeal from the grant of summary judgment de novo,

viewing the evidence in the light most favorable to Parker. Palmer v. Comm’r, 116

F.3d 1309, 1311 (9th Cir. 1997). Therein, we must determine whether there are any

“genuine issues of material fact precluding summary judgment” in favor of the

United States. Id.

                                          I.

      In a collection case brought by the United States to reduce its tax

assessments to judgment, “the government bears the initial burden of proof.” Id. at

1312. The government’s Certificates of Assessments and Payments satisfied this

initial burden here and created a presumption of correctness. Id. at 1311. The

amounts are supported by the language of the superseding information to which

Parker plead, see United States v. Cazares, 121 F.3d 1241, 1246 (9th Cir. 1997)

(“We have consistently held that a defendant's plea of guilty conclusively admits

all factual allegations of the indictment.”), Parker’s coworkers’ testimonies, his

own testimony, and statements by Parker’s attorney at the plea hearing, see United


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States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005) (“[W]e have

repeatedly held that criminal defendants are bound by the admissions of fact made

by their counsel in their presence and with their authority.”). Further, Parker has

failed to provide evidence showing “that the deficiency was arbitrary or

erroneous.” Hardy v. Comm’r, 181 F.3d 1002, 1004 (9th Cir. 1999). His attempt to

raise a genuine issue of fact, by arguing that the balance of his loan account with

Arcwel (the partial basis of the IRS’s assessment calculations) was inaccurate, fails

without evidence to support the argument. See Bradford v. Comm’r, 796 F.2d 303,

306 (9th Cir. 1986) (An appeal will generally be unsuccessful “where the taxpayer

kept inadequate records . . ., and then relied mainly on testimony to challenge the

Commissioner’s reconstruction of income .”). Thus, there is no genuine factual

dispute respecting the amounts Parker owes the government.1

                                          II.

      A debtor’s discharge in bankruptcy may be excepted “for a tax . . . with

respect to which the debtor made a fraudulent return or willfully attempted in any

manner to evade or defeat such tax.” 11 U.S.C. § 523(a)(1)(C). The government

must demonstrate “(1) a knowing falsehood; (2) an intent to evade taxes; and (3) an



      1
        The government’s Certificates of Assessments and Payments show Parker
failed to report $580,459 of income in 1986 and at least $633,799 in 1987.

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underpayment of tax.” Considine v. United States, 683 F.2d 1285, 1286 & n.1 (9th

Cir. 1982). “[E]xceptions to discharge should be strictly construed against an

objecting creditor and in favor of the debtor.” Snoke v. Riso (In re Riso), 978 F.2d

1151, 1154 (9th Cir. 1992).

      Parker’s guilty plea to a violation of 26 U.S.C. § 7206(1) estops him from

claiming that the returns were not willfully false and did not result in an

underpayment of tax. Considine, 683 F.2d at 1287. However, his “conviction under

§ 7260(1), without more, does not establish fraudulent intent.” Id.; McKay v.

United States, 957 F.2d 689, 691 (9th Cir. 1992).

      Regarding intent, Parker alleges a material factual dispute. Although his

testimony respecting his corporate loan account and its balance has been

inconsistent, Parker has consistently testified that he embezzled the funds to save

Arcwel from involuntary bankruptcy and that he did not act with an intent to evade

taxes. This view of the evidence may be reasonably inferred from the record. See

Provenz, v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996) (“Cases where intent is a

primary issue generally are inappropriate for summary judgment unless all

reasonable inferences that could be drawn from the evidence defeat the plaintiff's

claim.”). Further, the fact that this evidence’s basis is primarily Parker’s testimony

does not weaken its relevance, because it is more than conclusory, see id. at 1490-


                                          -4-
91, and credibility determinations are prohibited at the summary judgment stage.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Therefore, the district

court should not have granted summary judgment in favor of the United States

under § 523(a)(1)(C) for an exception to discharge. See Provenz, 102 F.3d at 1489.

                                          III.

      Parker’s tax liability and penalties for 1984 as well as his penalties (and

interest on those penalties) for the 1986 and 1987 tax year were discharged by the

2009 bankruptcy action. Though this discharge relieved Parker from personal

liability, the prepetition tax liens on his property remain enforceable after the

discharge. Dewsnup v. Timm, 502 U.S. 410, 417–18 (1992); Isom v. United States

(In re Isom), 901 F.2d 744, 745 (9th Cir. 1990). Accordingly, the district court

properly granted summary judgment to the government on this issue.

      AFFIRMED in part, REVERSED and REMANDED in part. The parties

shall bear their own costs.




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