                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 25 2012

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-56578

              Plaintiff - Appellee,              D.C. No. 3:08-cv-02140-MMA-
                                                 JMA
  v.

MICHAEL BENOIT,                                  MEMORANDUM *

              Defendant - Appellant,

  and

STATE OF CALIFORNIA FRANCHISE
TAX BOARD,

              Defendant.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                           Submitted September 10, 2012 **




        *
             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). Accordingly, Benoit’s
request for oral argument is denied.
Before:      WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

      Michael Benoit appeals pro se from the district court’s summary judgment

for the United States in its action to reduce to judgment federal income tax

assessments and to foreclose liens on Benoit’s real property in order to satisfy

deficiencies from tax years 1995 and 1996. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo, Hughes v. United States, 953 F.2d 531, 541 (9th Cir.

1992), and we affirm.

      The district court properly granted summary judgment to the United States

because the government submitted Form 4340 for years 1995 and 1996, and Benoit

failed to produce any evidence that undermined the validity of the assessed

amounts. See Palmer v. I.R.S., 116 F.3d 1309, 1312 (9th Cir. 1997) (Internal

Revenue Service assessments for unpaid taxes entitled to presumption of

correctness unless taxpayer submits competent evidence that the assessments were

arbitrary, excessive, or without foundation); Hughes, 953 F.2d at 535 (official

certificates, such as Form 4340, can constitute proof of the fact that the

assessments were actually and properly made); see also Hansen v. United States, 7

F.3d 137, 138 (9th Cir. 1993) (per curiam) (taxpayers’ conclusory, self-serving

affidavit did not raise a triable dispute so as to undermine validity of

representations in Form 4340).


                                           2                                   10-56578
      The district court did not abuse its discretion in denying Benoit’s motion to

compel in part and in denying Benoit’s motion for sanctions. See Hallett v.

Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (“[B]road discretion is vested in the

trial court to permit or deny discovery, and its decision to deny discovery will not

be disturbed except upon the clearest showing that denial of discovery results in

actual and substantial prejudice to the complaining litigant.” (citation and internal

quotation marks omitted)).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or allegations raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      Benoit’s remaining contentions concerning the district court’s jurisdiction

and impartiality, the relevance of his homestead declaration, and whether the

district court improperly adjudicated the California Franchise Tax Board’s interests

or improperly resolved genuine disputes of material fact, are unpersuasive.

      Benoit’s motion “for order to show cause why summary judgment should

not be vacated,” filed on November 17, 2011, is denied.

      AFFIRMED.




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