
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                For The FIRST CIRCUIT                                 ____________________        No. 92-2192                               DAVID & ANN MARIE NIEMELA,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            David W. Niemela and Ann Marie Niemela on brief pro se.            ________________     _________________            A.  John  Pappalardo, United  States  Attorney, James  A.  Bruton,            ____________________                            _________________        Acting Assistant Attorney General, Gary R. Allen, David I. Pincus, and                                           _____________  _______________        Jordan L. Glickstein, Attorneys, Tax  Division, Department of Justice,        ____________________        on brief for appellee.                                 ____________________                                    June 11, 1993                                 ____________________                 Per  Curiam.  Claiming that the Internal Revenue Service                 ___________            (IRS)  violated an  array of  statutory  requirements in  its            effort to  collect unpaid taxes, David and  Ann Marie Niemela            filed this  pro se action  seeking to "quiet title"  to their            property  and requesting injunctive relief and damages.  From            an award of summary judgment to the IRS, they now appeal.  We            agree  with the district  court's conclusions in  all but two            particulars, as to which we find the IRS' evidence wanting.                                          I.                  David Niemela,  a plumber  by trade and  a member  of an            organization  opposed  to  this  country's  system  of income            taxation, filed  a "protest  return"  for 1980  on behalf  of            himself  and his  wife.   For the  years 1981  and  1982, the            Niemelas filed  no returns at  all.  Prompted by  the protest            return, the IRS audited their 1979 return and determined that            a deficiency existed  for that year.  The  Niemelas sought to            challenge this finding in  Tax Court, but their petition  was            later  dismissed on procedural grounds.  Thereafter, based on            "substitute returns" prepared under 26 U.S.C.   6020, the IRS            determined that deficiencies also existed for the years 1980-            82.  As to these findings,  no Tax Court petition was  filed.            After allegedly making the  requisite assessments and issuing            the  requisite notices,  the  IRS  attempted  to  recoup  the            deficiencies--first by levying on money owed to David Niemela            by  a local school,  and then by filing  various liens on the                                         -2-            couple's  real and  personal property.    The IRS  calculates            that, as  of 1989, a  debt of some $180,000  remained unpaid,            consisting of back taxes, interest and penalties.                   The assessment and notice requirements at issue here can            be  outlined as follows.  Upon  determining that a deficiency            exists, the IRS first must send a notice of deficiency to the            taxpayer.   26 U.S.C.   6212.   The taxpayer  then has ninety            days to file  a petition in the Tax Court in order to contest            the  deficiency  determination.   Id.     6213.   If  such  a                                              ___            petition is filed,  the IRS is barred from  taking any action            to collect the  debt until the Tax Court  decision has become            final.  Id.     6213(a), 6215.  If no such  petition is filed                    ___            (or once the Tax Court  decision becomes final), the IRS must            then make  an assessment of  the deficiency, id.    6203, and                                                         ___            send a notice and  demand for payment to the  taxpayer, id.                                                                      ___            6303.  If the deficiency is not paid, a lien arises  in favor            of the United States on all real and personal property of the            taxpayer, id.   6321, as of the date of the assessment, id.                        ___                                           ___            6322.  The  IRS may thereafter levy upon  such property after            providing the taxpayer with notice of its intention to do so.            Id.   6331.            ___                 The Niemelas contend  that none of these  safeguards was            followed.   In  particular,  they argue  that: (1)  no proper            notices of deficiency  were sent; (2)  no assessments of  the            deficiencies  were made;  (3)  no  notices  and  demands  for                                         -3-            payment were mailed; and (4) no notice of intent to levy  was            provided.    For  these  reasons, they  say  that  relief  is            warranted   under  the  quiet  title  statute,  28  U.S.C.               2410(a).1   They also  seek damages  pursuant to  three other            provisions: under 26 U.S.C.   7431 for unlawful disclosure of            return  information;  under    7432  for  failure  to release            liens;  and under   7433 for unauthorized collection actions.            Finally, they  seek an injunction  under   7426  for wrongful            levy.   Apart from  these various claims  (each of  which the            district court rejected), the Niemelas advance  an additional            contention  on appeal:  that  the  district  court  erred  in            denying their  motion under  Fed. R. Civ.  P. 56(f)  to defer            consideration of  the summary judgment motion pending further            discovery.   We review the district  court's award of summary            judgment in  plenary fashion,  construing the  record in  the            light most  favorable  to the  opposing  party.   See,  e.g.,                                                              ___   ____            Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993).            ______    _____                                         II.                                            ____________________            1.  A taxpayer  in a  quiet title  action cannot contest  the            merits  of the underlying  tax assessment, but  can challenge            alleged defects in the procedures  giving rise to an IRS lien            or levy. See, e.g., Geiselman v. United States, 961 F.2d 1, 6                     ___  ____  _________    _____________            (1st Cir.) (per curiam), cert. denied, 113 S. Ct. 261 (1992);                                     ____________            McMillen v.  Department of Treasury,  960 F.2d 187,  189 (1st            ________     ______________________            Cir. 1991) (per curiam).   In Geiselman, we noted that courts                                          _________            had divided as to whether a defect in  a notice of deficiency            may be challenged in such  an action.  See id. at 6  n.1.  We                                                   ___ ___            need not address  this issue here, however, as the government            has not  raised it,  and as  we find  no such  defect in  any            event.                                          -4-                 The  Niemelas have  devoted  only  cursory attention  on            appeal  to several  of these  claims,  to the  point where  a            waiver might  well be  inferred.   Nonetheless,  in light  of            their  pro  se  status,  we   shall  address  each  of  their            contentions in turn.                   A.  Notices of Deficiency                     _____________________                 The  IRS submitted copies  of two notices  of deficiency            said to  have been sent to  the Niemelas: one dated  April 6,            1983 pertaining to the  year 1979, the other  dated September            7, 1988  pertaining  to the  years  1980-82.2   The  Niemelas            argue,  somewhat  paradoxically,  both  that  no  notices  of            deficiency were sent and that such notices were inadequate in            form.    Yet  in     50 of  their  original  complaint,  they            acknowledged  having received the notices.3   And a notice of            deficiency  is adequate so long  as it satisfies the "minimum            requirements" of setting  forth the amount of  the deficiency            and the tax  year involved.  Geiselman v.  United States, 961                                         _________     _____________            F.2d 1, 5 (1st Cir.)  (per curiam), cert. denied, 113  S. Ct.                                                ____________            261 (1992).  The notices here did just that.                                            ____________________            2.  Contrary to the  taxpayers' suggestion, the IRS  does not            contend that the second notice  was sent on February 9, 1989.            Its statement  to that  effect in its  brief is  obviously an            inadvertent misstatement.              3.  Section 6212 requires only that  the IRS mail a notice of            deficiency to the taxpayer's last home address, not  that the            taxpayer  actually receive it.  See, e.g., Guthrie v. Sawyer,                                            ___  ____  _______    ______            970 F.2d 733,  737 (10th Cir. 1992); United  States v. Zolla,                                                 ______________    _____            724  F.2d 808,  810 (9th  Cir.), cert.  denied, 469  U.S. 830                                             _____________            (1984).                                           -5-                 B.  Assessments; Notices and Demands for Payment                     ____________________________________________                 An assessment is made "by recording the liability of the            taxpayer  in  the  office  of  the  [Treasury]  Secretary  in            accordance  with  rules  or  regulations  prescribed  by  the            Secretary."  26 U.S.C.   6203.                   The  assessment shall  be  made  by  an  assessment                 officer signing  the summary record  of assessment.                 The  summary  record, through  supporting  records,                 shall provide identification  of the taxpayer,  the                 character of  the liability  assessed, the  taxable                 period,  if  applicable,  and  the  amount  of  the                 assessment....  The  date of the assessment  is the                 date  the summary record is signed by an assessment                 officer.            26 C.F.R.    301.6203-1.  Within sixty days  of an assessment            being made, the  IRS must "give notice to  each person liable            for the unpaid tax, stating  the amount and demanding payment            thereof."  26  U.S.C.   6303(a).  Such notice must be left at            the taxpayer's dwelling or usual place of business or sent by            mail to  his last known address.  Id.   No particular form is                                              ___            required, so long as  the notice "provides the taxpayer  with            all the information required under  ...   6303(a)."  Elias v.                                                                 _____            Connett, 908 F.2d 521, 525 (9th Cir. 1990).            _______                 The  IRS alleges  that,  for  the  1979  deficiency,  an            assessment was made  and notice sent on January  22, 1985; it            states that,  for the 1980-82 deficiencies,  assessments were            made and notices  sent on February 9, 1989.   To substantiate            these claims,  the IRS did  not submit copies of  the summary                                         -6-            record, known as Form 23C,4 nor did it provide copies of  the            actual notices and demands for payment.  Instead, it provided            several "certificates of assessments and payments."  Known as            Form 4340,  these are computer-generated  transcripts showing            all transactions  in a  taxpayer's account  for a  particular            year.  Each  of the certificates  contains a column  entitled            "23C  Date," which  lists  the  date or  dates  on which  the            assessment officer  signed a Form  23C.  And each  contains a            notation entitled "First Notice," which documents when notice            and demand for payment was sent.                    We held in Geiselman, in accordance with the vast weight                            _________            of  authority, that such certificates are "routinely used" to            prove  that  the  assessment   and  notice  procedures   were            satisfied.  961 F.2d at  6.  More particularly, we held  that            the 23C  Date is  presumptive proof  that a valid  assessment            occurred, and that  the First Notice is  likewise presumptive            proof  that the  IRS  gave notice  and  demand for  payment.5                                            ____________________            4.  The  taxpayers,   however,  did  obtain  copies   of  the            applicable   Forms  23C   through   an  earlier   Freedom  of            Information  Act request and attached them to their pleadings            below.  As  these documents reveal, and as  other courts have            noted, a Form  23C contains no individualized  information as            to  any specific taxpayer,  but rather simply  summarizes the            total  assessments made  by the IRS  service center  for each            class  of tax  on a particular  day.  See,  e.g., Stallard v.                                                  ___   ____  ________            United States, 806 F. Supp. 152, 158 (W.D. Tex. 1992).             _____________            5.  The   Niemelas   allege   that   the   certificates   are            inadmissible for sundry reasons--for example,  that they lack            a  Treasury seal, were  not properly certified,  are hearsay,            are not best evidence, and were prepared for purposes of this            litigation.  These  and related arguments have  been rejected                                         -7-            Id.; accord, e.g.,  Farr v United States, ___  F.2d ___, 1993            ___  ______  ____   ____   _____________            WL 86986,  at *2  (9th Cir.  1993 ("certificates  were proper            evidence  of the propriety  of the assessment  proceedings in            all particulars"); Long v. United States, 972 F.2d 1174, 1181                               ____    _____________            (10th Cir. 1992); Gentry v.  United States, 962 F.2d 555, 557                              ______     _____________            (6th Cir. 1992); Rocovich v. United States, 933 F.2d 991, 994                             ________    _____________            (Fed. Cir.  1991);  United States  v. Chila,  871 F.2d  1015,                                _____________     _____            1017-18 (11th Cir.), cert. denied, 493 U.S. 975 (1989).                                   ____________                 With one exception,  the certificates  here contain  23C            Date and  First Notice  entries that  substantiate the  IRS's            claim that the  assessments were made and  the notices mailed            on the  dates indicated.    Nothing offered  by the  Niemelas            calls  this evidence  as  a  whole into  question.   The  one            exception is the  absence in the 1982 certificate  of any 23C            date   corresponding  to   the  alleged   February  9,   1989            assessment.  On account of this omission, and because the IRS            relied solely on the certificate for its proof on this issue,            we conclude  that a factual  dispute remains as to  whether a            valid assessment  occurred for  the year 1982.6   See,  e.g.,                                                              ___   ____                                            ____________________            on numerous occasions.  See, e.g., Long v. United States, 972                                    ___  ____  ____    _____________            F.2d  1174, 1181 (10th  Cir. 1992); Hughes  v. United States,                                                ______     _____________            953  F.2d  531, 539-40  (9th  Cir. 1992);  McCarty  v. United                                                       _______     ______            States, 929 F.2d 1085, 1089 (5th Cir. 1991).             ______            6.  To be sure,  there are  other intimations  in the  record            that  an  assessment did  occur  for  that  year.   The  1982            certificate contains  a First  Notice entry  for February  9,            1989; the sending of notice and demand suggests (but does not            confirm) that an assessment was first made.  In addition, the            liens filed on July 10,  1989 make reference to an assessment                                         -8-            Brewer v. United  States, 764 F. Supp. 309,  315-16 (S.D.N.Y.            ______    ______________            1991)  (issue  of  fact remained  where  certificate  did not            contain 23C dates) (noted in Geiselman, 961 F.2d at 6).                                         _________                 C.  Notice of Intent to Levy                     ________________________                 As mentioned, the IRS in November 1986 levied  on monies            owed  by the North Middlesex  Regional School System to David            Niemela,  presumably in response to the 1979 deficiency which            had been  assessed the  previous year.   The school  ended up            forwarding approximately $790 to the IRS.  The Niemelas claim            that no notice of intent to levy was provided, as required by            26 U.S.C.   6331(d).7   The government failed to address this            claim in its various submissions, either below or on  appeal,            and the district court made no mention of it in its decision.                                            ____________________            for 1982.   Most important,  the taxpayers  have submitted  a            copy  of their  Individual Master  File  (obtained through  a            Freedom of Information  Act request).  For the  year 1982, in            entries dated February 9, 1989, the deficiency, penalties and            interest are all  listed, together with the  notation "ASED."            We   assume,   but   are   reluctant  to   conclude   without            confirmation, that this refers  to an assessment.  Under  the            circumstances, we think a limited remand for clarification on            this  point is warranted--either through a renewed motion for            summary judgment or by other means.              7.  See also 26 C.F.R.   301.6331-2(a):                ________                      Levy may be made upon the salary or wages of a                 taxpayer for any unpaid tax only after the district                 director ...  has notified the taxpayer  in writing                 of the intent to levy.  The notice must be given in                 person,  left at  the dwelling  or  usual place  of                 business of the taxpayer, or be sent by mail to the                 taxpayer's last known address, no less than 10 days                 before the  day of levy.   The notice of  intent to                 levy is  in addition  to, and may  be given  at the                 same time as, the [  6331] notice and demand ....                                         -9-            This  is hardly  surprising.   The  Niemelas have  advanced a            welter of prolix, often far-fetched, allegations, accompanied            by  a  profusion   of  supporting  materials.8     And  their            complaint contains only  an oblique reference to  the alleged            lack  of   notice  of   intent   to  levy--identifying   such            requirement  only   by  statutory  citation,  not  by  name.9            Nonetheless, construing  the complaint liberally in  light of            the Niemelas'  pro se status, we  think it can and  should be            read to advance such a claim.  We also note that the Niemelas            voiced   this  allegation   more  explicitly   in  subsequent            submissions, such  as in their  response to the  IRS's motion            for summary judgment and in their Rule 56(f) motion to defer.            Accordingly,  we think  a  remand is  warranted  as well  for            consideration of this claim.10                                            ____________________            8.  For example,  in their original  complaint, the taxpayers            alleged, inter  alia, that  the failure  to publish  Treasury                     ___________            Department delegation orders in the Federal Register deprived            the IRS of authority  to collect taxes, and  that the use  of            Form 1040  was invalid under  the Paperwork Reduction  Act of            1980.            9.  The amended  complaint asserts ambiguously  that the  IRS            failed  to send  "valid  lawful  Notices  of  Deficiency,  or            Notices of Assessment  and Demand for  Payment based on  Form            23C   Certificate   of   Assessment   and   other    required                                                  _______________________            documentation,  as required  by  Sections  6212(a)  and  (b),            _____________            6303(a), and  6331(b) and (d)(2)  ...."  Amended Compl.    21                     _______________________            (emphasis  added).     Their  original   complaint  contained            identical language.            10.  It  appears from the  amended complaint that  no ongoing            levy is in  place, and that the taxpayers  are seeking simply            to recover previously garnisheed wages now in the IRS' hands.            If so, a  quiet title action may  not lie.  See,  e.g., Farr,                                                        ___   ____  ____            ___ F.2d at  ___, 1993 WL 86986,  at *2; Hughes, 953  F.2d at                                                     ______                                         -10-                 D.  Claims for Damages and Injunctive Relief                     ________________________________________                 The Niemelas contend that the  IRS is subject to damages            for unlawfully disclosing return information to third parties            in  connection with the issuance of the liens and levy.  This            claim,  as they acknowledge,  is largely derivative  of those            described  above.   Under 26  U.S.C.    7431, a  taxpayer may            recover damages  for the intentional or  negligent disclosure            of return information in violation  of   6103.  Section 6103,            in turn, establishes  the general rule that  such information            is  confidential, subject  to various  enumerated exceptions.            It is  well settled that  one such exception, contained  in              6103(k)(6),   authorizes   the  disclosure   of   tax  return            information to the extent necessary to effect a valid lien or            levy.11   See, e.g.,  Farr, ___ F.2d  at ___,  1993 WL 86986,                      ___  ____   ____            at *3 to *4; Long, 972 F.2d at 1180; Hughes v. United States,                         ____                    ______    _____________                                            ____________________            538.   Nonetheless,  if the  notice  of intent  to levy  were            deemed invalid, the taxpayers might still have a viable claim            for damages for unlawful  disclosure under 26 U.S.C.    7431.            See, e.g.,  Rorex v. Traynor,  771 F.2d 383 (8th  Cir. 1985).            ___  ____   _____    _______            We express no  opinion on these  issues, preferring that  the            lower court address them in the first instance, if necessary.            11.  Section 6103(d)(6) provides that an IRS employee may, in            connection  with  "his  official   duties  relating  to   ...            collection  activity,"  disclose   return  information  where            necessary  to   obtain  information  "with  respect   to  the            enforcement  of any  other  provision of  this  title."   The            accompanying  regulation  states  that   such  disclosure  is            warranted  in order  "to  apply the  provisions  of the  Code            relating to establishment  of liens against [the  taxpayer's]            assets,  or  [a]  levy  on  ... the  assets  to  satisfy  any            [outstanding]  liability."    26  C.F.R.      301.6103(k)(6)-            1(b)(6).                                          -11-            953 F.2d 531, 542 (9th  Cir. 1992); Maisano v. United States,                                                _______    _____________            908 F.2d 408, 410 (9th Cir. 1990); Bleavins v. United States,                                               ________    _____________            807 F. Supp. 487, 488 (C.D. Ill. 1992)  ("In other words, the            IRS  may  disclose  information  when  attempting  to collect            taxes.").   Given our  earlier findings  that the  procedures            giving  rise  to the  liens  with  respect  to  the  assessed            deficiencies  for the years 1979-81 were valid, the Niemelas'              7431  claim with respect thereto  must fail.  On  the other            hand, we have found that factual disputes exist as to whether            a proper assessment for 1982 was made and whether a notice of            intent to levy was issued.  Should it be determined on remand            that  either of  these procedures was  deficient, the    7431            claim should then be addressed  to that limited extent.  See,                                                                     ___            e.g., James  v. United States,  970 F.2d 750, 757  n.13 (10th            ____  _____     _____________            Cir. 1992).                  Such a "contingent"  remand is likewise appropriate  for            the  Niemelas'    7433  claim.   That  provision permits  the            recovery  of damages  for the  IRS'  intentional or  reckless            disregard of  any provision  of the tax  laws "in  connection            with any  collection of Federal  tax."  26 U.S.C.    7433(a).            The Niemelas  claim entitlement to such relief  on account of            the  allegedly  deficient  assessment and  notice  procedures            discussed  above.  Again, however, the only potential defects            involved the assessment for 1982  and the notice of intent to            levy.  And  because   7433 applies only  to actions occurring                                         -12-            after November  10, 1988,  see, e.g.,  Gonsalves v.  Internal                                       ___  ____   _________     ________            Revenue  Service, 975  F.2d 13,  16-17 (1st  Cir. 1992)  (per            ________________            curiam), any defect  in the 1986 levy would  provide no basis            for recovery.  By contrast, should the assessment for 1982 be            deemed invalid, a    7433 claim might lie to  the extent that            the 1989 lien  pertained to the  deficiency for that  year.12            The  district court  should likewise  address  this issue  on            remand should it prove necessary.                 The  Niemelas'  remaining  two   claims  require  little            comment.  Section  7432 authorizes an award of  damages where            the IRS fails to  release a lien in accordance with    6325--            i.e., where the lien is  satisfied or unenforceable or a bond            is accepted  by the  Treasury Secretary.   There has  been no            showing  that any  of these  conditions  has been  satisfied.            Section 7426, in  turn, permits an award of injunctive relief            and damages for wrongful levy.  Yet only a person "other than            the person against whom is assessed the tax out of which such            levy arose" may file such an action.  26 U.S.C.   7426(a)(1).            The Niemelas obviously do not fit such description.                   E.  Rule 56(f) Motion to Defer                     __________________________                 Finally,  the Niemelas  argue  that  the district  court            erred  in  granting  summary  judgment  to  the  IRS  without                                            ____________________            12.  The  government argues that  the Niemelas'    7431 claim            has been superseded by   7433, and that their   7433 claim is            barred  for failure to  exhaust administrative remedies.   We            leave these  issues for the  district court to decide  in the            first instance, if necessary.                                            -13-            allowing them  an adequate  opportunity to  obtain discovery.            The  Niemelas sought  to  obtain  a  multitude  of  documents            pertaining to  the  assessment and  notice procedures,  along            with  depositions  of  various  IRS  officials  with   regard            thereto--all  without success.13   They later asked  that any            ruling  on the  IRS'  summary  judgment  motion  be  deferred            pending  such  discovery,  and  filed  a  detailed  affidavit            attempting to explain how such materials would lead to "facts            essential to justify [their] opposition" to the motion.  Fed.            R. Civ. P. 56(f).  In the course of its ruling on the summary            judgment  motion, the district  court denied this  request on            the  ground  that  none  of  the  proposed  discovery  "could            plausibly be said to have  led to the development of evidence            actually  relevant  to  my disposition  of  the  government's            motion."  We review an  order denying relief under Rule 56(f)            for abuse of discretion.  See,  e.g., Bank One Texas, N.A. v.                                      ___   ____  ____________________            A.J. Warehouse, Inc., 968 F.2d 94, 100 (1st Cir. 1992).            ____________________                 A party seeking a Rule 56(f)  deferral must, inter alia,                                                              __________            "articulate   a   plausible  basis   for   the  belief   that            discoverable materials  exist which would raise a trialworthy            issue."   Price v.  General Motors Corp.,  931 F.2d  162, 164                      _____     ____________________                                            ____________________            13.  The IRS  declined to  respond to  such requests  pending            decision on its  motion to dismiss or in  the alternative for            summary   judgment.    The  Niemelas  then  moved  to  compel            production,  and  the IRS  responded  with  a  motion  for  a            protective order.  These various  motions were never acted on            by the court.                                         -14-            (1st Cir. 1991); see also  Mattoon v. City of Pittsfield, 980                             ________  _______    __________________            F.2d  1,  8  (1st  Cir.  1992)  (must  show  that  "specified            discoverable  material  facts"  likely  exist).    While  the            Niemelas  sought materials pertaining  to all aspects  of the            collection process,  their request  focused  on the  original            documents   underlying   the   assessments--the   "supporting            records" mentioned in 26 C.F.R.   301.6203-1  from which Form            23C  is prepared.   Their  request in  this respect  was two-            pronged.  They contended that they were specifically entitled            to such records  under the terms of the regulation.  And they            argued  more generally that obtaining such evidence was their            only means of  rebutting the presumption of  validity arising            from the Form 4340 certificates.                     The IRS'  submission of  the certificates  satisfied the            disclosure  requirements of  26 C.F.R.     301.6203-1.   That            regulation  specifies that a  taxpayer is entitled  only to a            copy of  the "pertinent  parts" of  the assessment  record.14            And as the Ninth Circuit has explained:                 Those  pertinent parts  need only provide  the five                 items listed in  the Regulations [taxpayer's  name,                 date  of assessment,  character  of liability,  tax                 period  if  applicable, and  amounts  assessed]....                 Neither the  Tax Code nor the  Treasury Regulations                 require  those  pertinent  parts  to  be   original                                            ____________________            14.  Section  301.6203-1 states  in  relevant  part: "If  the            taxpayer  requests a  copy  of the  record of  assessment, he            shall  be furnished  a copy  of  the pertinent  parts of  the            assessment which set forth the name of the taxpayer, the date            of assessment, the  character of the liability  assessed, the            taxable period, if applicable, and the amounts assessed."                                         -15-                 documents, and the IRS has selected the certificate                 of  assessments  and  payments  as  the  means  for                 providing the information specified.                      ....     We   therefore   conclude  that   the                 plaintiffs  are  not   entitled  to  the   original                 supportingdocuments usedtocompilethe summaryrecord.            Gentry, 962 F.2d at  558; see also Hughes, 953 F.2d  at 539 &            ______                    ________ ______            n.4; Chila,  871 F.2d at 1017.  With  the exception of a "23C                 _____            Date"  for the 1982 assessment, the certificates submitted in            the instant case contain all of the specified information.                 Assuming   arguendo  that   this  regulation   does  not                            ________            prescribe  the range  of permissible  discovery,  we likewise            find no  abuse  of  discretion in  the  court's  decision  to            address  the summary  judgment motion  without affording  the            Niemelas  the opportunity  to secure  such materials.   To be            sure,  the Niemelas' central  argument--that it is difficult,            in the absence of discovery, to adduce evidence rebutting the            presumption of correctness arising from the  certificates--is            not without  some force.   Yet whether or not  the supporting            documents underlying the assessments might be deemed relevant            to their claims,15  the circumstances here amply  support the            court's ruling.                                              ____________________            15.  Compare,  e.g., Guthrie  v. Sawyer,  970  F.2d 733,  738                 _______   ____  _______     ______            (10th Cir.  1992)  (supporting documents  not  relevant)  and                                                                      ___            McCarty v.  United States, 929  F.2d 1085, 1088-89  (5th Cir.            _______     _____________            1991)   (same)  with,   e.g.,   Farr,   ___   F.2d   at   ___                            ____    ____    ____            (notwithstanding submission  of certificate,  taxpayer should            have  "been given the  opportunity to conduct  some discovery            before  judgment was entered") and Rand v. United States, ___                                           ___ ____    _____________            F. Supp. ___, 1993 WL 127098, at *2 (W.D.N.Y. 1993) (original            notices,   while  "clear[ly]  ...   relevant,"  need  not  be            produced).                                         -16-                 First,  at the root  of the Niemelas'  Rule 56(f) motion            were the allegations that the certificates were inadequate to            satisfy  the  regulation's disclosure  requirements  and were            otherwise inadmissible.   As mentioned,  these arguments  are            misplaced.  Second, the Niemelas had already obtained many of            the underlying documents--including all  Forms 23C and  their            individual   master   files--through   earlier   Freedom   of            Information Act  requests.  See  Brewer, 764 F. Supp.  at 318                                        ___  ______            (denying Rule 56(f)  motion, among other reasons,  because of            information  obtained through FOIA  requests).   Third, apart            from their unilateral assertions, the Niemelas articulated no            reason to suspect that procedural irregularities attended the            assessment process.16   And the district court  was warranted            in  discounting those  assertions, inasmuch  as the  Niemelas            voiced  similar allegations with  respect to every  aspect of            the collection  process.  Fourth,  in light of the  number of            claims  advanced and  the extent  to which they  were "wrong-            headed" (to use the  district court's term), the  court could                                            ____________________            16.  The Niemelas  place considerable  emphasis  on an  April            1990   IRS  memorandum  reporting  that  a  small  number  of            irregularities had occurred in the  process by which the  23C            Forms  were  signed.    Yet,  through  an  FOIA  request, the            Niemelas received copies of the 23C Forms applicable to their            assessments.   They have  voiced no  complaint regarding  the            signatures  appearing thereon.  The Niemelas also allege that            the  number of  entries  in  their  individual  master  files            differs from the  number appearing on the certificates.   Any            such  discrepancy is beside the  point, given that the master            files do contain  pertinent entries for each of  the dates on            which the assessments in question hereallegedly occurred.                                             -17-            well have concluded that the discovery requests amounted to a            "fishing expedition."                 Finally, we note that the Niemelas' claim in this regard            falls  under the  vast weight  of authority.   To be  sure, a            handful of  lower  courts,  in  unpublished  decisions,  have            permitted discovery of the  original assessment documents  or            have  granted  Rule  56(f)  motions for  that  purpose.   The            Niemelas point  to several; others  exist.  Yet in  the clear            majority   of   cases   (including   dozens  of   unpublished            decisions),  courts have denied such relief, even in the face            of  a proper  Rule 56(f)  affidavit.   See, e.g.,  Guthrie v.                                                   ___  ____   _______            Sawyer,  970 F.2d  733, 738 (10th  Cir. 1992);  Montgomery v.            ______                                          __________            United States, 933 F.2d 348,  350 (5th Cir. 1991); McCarty v.            _____________                                      _______            United  States, 929  F.2d  1085,  1088-89  (5th  Cir.  1991);            ______________            Brewer, 764 F. Supp.  at 318; Rossi v. United  States, 755 F.            ______                        _____    ______________            Supp. 314, 319 (D. Or. 1990),  aff'd, 983 F.2d 1077 (9th Cir.                                           _____            1993).  We are unaware  of any appellate court reversing such            a ruling in this context.17                                          III.                 In summary, the judgment is affirmed in part, vacated in            part and  remanded.  On  remand, the sole issues  are whether            the  assessment  for  1982  was valid  and  whether  the  IRS                                            ____________________            17.  We  reject  without  comment   the  Niemelas'  remaining            claims,  including the allegation  that they  were improperly            selected for audit.                                         -18-            provided notice  of intent  to levy, along  with the  damage-            claim issues that are contingent upon those findings.                 Affirmed in part, vacated in part and remanded.                 _______________________________________________                                         -19-
