                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAY 17 2004
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                 No. 03-5094
                                                 (D.C. No. 98-CV-526-EA)
    TIMOTHY LEE NIPPER, separately                     (N.D. Okla.)
    and as trustee for the Proprietor
    Property Trust,

                Defendant-Appellant,

          and

    THOMAS EUGENE NIPPER, as
    trustee for the Proprietor Property
    Trust and as nominee of Timothy
    Lee Nipper; MELLON MORTGAGE
    COMPANY, as mortgagee,

                Defendants.


                              ORDER AND JUDGMENT        *




Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       Timothy Lee Nipper appeals from two rulings of the district court in the

underlying case brought by the United States to reduce tax assessments against

appellant to judgment and set aside a real property conveyance so as to foreclose

upon it. First, he challenges the district court’s denial of his motion to strike all

deposition testimony elicited from his former wife, Dawn Lynn Lang, as violative

of the marital confidential communications privilege. Second, he challenges the

district court’s grant of   summary judgment to the government. He argues that the

government presented insufficient evidence to support its assessments for tax

years 1981 through 1985. We have jurisdiction over this appeal by virtue of

28 U.S.C. § 1291.

       We review the district court’s ruling on the motion to strike Ms. Lang’s

deposition testimony for abuse of discretion,     see Lighton v. Univ. of Utah ,

209 F.3d 1213, 1227 (10th Cir. 2000). However, we review the district court’s

application of the law respecting the marital confidential communications

privilege de novo . See Conkle v. Potter , 352 F.3d 1333, 1335 n.4 (10th Cir.

2003). We also review the grant of     summary judgment de novo , applying the

same standards as did the district court in determining whether the government

provided the minimal evidentiary foundation required to support the tax

assessments. See Mann v. United States , 204 F.3d 1012, 1015-16 (10th Cir.

2000); United States v. McMullin , 948 F.2d 1188, 1192 (10th Cir. 1991). Having


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carefully reviewed the record and the parties’ briefs in light of these standards

and the applicable law, we conclude that the district court’s rulings were correct.

For substantially the same reasons contained in the district court’s orders, dated

February 3, 2003, and March 25, 2003, the judgment of the district court

is AFFIRMED.


                                                     Entered for the Court



                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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