                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



                                                 No. 08-55080
EARL JORDAN,
                                                 D.C. No. CV-06-00338-VBF
              Plaintiff-counter-defendant -
Appellant,
                                                 MEMORANDUM *
  v.

UNITED STATES OF AMERICA,

              Defendant-counter-claimant -
Appellee.



                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                            Submitted August 31, 2009 **
                               Pasadena, California

Before: GOULD and TALLMAN, Circuit Judges, and PANNER, *** District Judge.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

       ***
             The Honorable Owen M. Panner, United States District Judge of the
District of Oregon, sitting by designation.
      Earl Jordan appeals from a summary judgment entered in favor of the United

States in this action under 26 U.S.C. § 6672 seeking penalties relating to unpaid

employee withholding taxes. Jordan contends he was not the “responsible person”

required to pay the taxes, the assessment was invalid due to procedural errors, and

some partial payments were improperly allocated. We affirm.

                                          I.

      Despite his titles of founder, President, Director, CEO, and Treasurer of

Jordan Pharmaceuticals, Inc. (JPI), Jordan argues he was not the “responsible

person” for purposes of § 6672. He contends he lost significant control over the

company's finances after JPI entered into a financing arrangement with Andrew

Pollet – an attorney, Secretary, Director, and investor with the company.

      Jordan, however, authorized much of Pollet's financial control and, by his

own admission, managed the day-to-day operations of the business, prepared

payroll tax returns, authorized payment of federal tax deposits, signed financing

contracts, and determined the company's financial policy. In light of these duties,

and the status conferred by Jordan's titles, we conclude there is no factual dispute

regarding Jordan’s status as a “responsible person” under § 6672. See Purcell v.

United States, 1 F.3d 932, 937 (9th Cir. 1993) (holding delegation of financial




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affairs does not alleviate responsibility); Davis v. United States, 961 F.2d 867, 873

(9th Cir. 1992) (noting responsibility is a matter of status, duty, and authority).

                                           II.

      Jordan argues the "jeopardy assessments" against him are invalid because

they were not signed by the Chief Counsel pursuant to 26 U.S.C. § 7429(a)(1)(A).

We disagree. "[I]n the absence of clear evidence to the contrary, courts presume

that [public officers] have properly discharged their official duties." United States

v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (citations omitted); accord Palmer

v. IRS, 116 F.3d 1309, 1311-12 (9th Cir. 1997). Jordan's bare allegation that the

Chief Counsel did not approve the assessments against him does not meet his

burden of proof.

      We also reject Jordan's argument that he was not properly notified of the

factual basis of the assessments pursuant to 26 U.S.C. § 7429(a)(1)(B). We have

held that similar notice provisions are "for the protection of the taxpayer only in

case the IRS use[s] . . . summary administrative remedies . . . . [S]uch notice is not

required as a prerequisite to filing a civil action, because the filing of the action

allows sufficient time for the taxpayer to consider and pay any tax that is due

before any judgment or lien can be made against his property." Purcell, 1 F.3d at

941 (quoting United States v. Chila, 871 F.2d 1015, 1018 (11th Cir. 1989)).


                                           -3-
                                         III.

       Jordan argues that partial tax payments by JPI should have been credited as

employee withholding taxes. Without specific evidence of a valid designation,

however, "the IRS may apply the payment as it sees fit." Davis, 961 F.2d at 878.

Here, testimony regarding JPI's general practices and some handwritten notations

are insufficient evidence to substantiate Jordan's argument or even to create a

triable issue of fact.

       AFFIRMED.




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