                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS

                    For The FIRST CIRCUIT

                                         

No. 92-2192 

                  DAVID &amp; 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 &amp;
                                         

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-
