                                                                                    FILED
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             October 16, 2009
                                   TENTH CIRCUIT
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

JOHN M. DZULA and JOANNA DZULA,

              Plaintiffs – Appellants,
                                                              No. 09-2050
v.                                                             (D. N.M.)
                                                 (D. Ct. No. 2:08-CV-00079-RB-LFG)
UNITED STATES OF AMERICA,

              Defendant – Appellee.



                              ORDER AND JUDGMENT*


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this panel concludes that oral

argument would not materially assist the determination of this appeal. See Fed. R. App.

P. 34(a)(2); 10th Cir. R. 34.1(G). This case is submitted for decision without oral

argument.

       John M. Dzula and Joanna Dzula, husband and wife, appearing pro se and in




       *
          This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation – (unpublished). Id.
forma pauperis (ifp),1 appeal from the district court’s orders granting summary judgment

in favor of the Internal Revenue Service (IRS) and denying their motion for

reconsideration. We affirm.

                                I.      BACKGROUND

       The parties are familiar with the facts and we repeat only the most essential facts

here. From 1992 to 1994, John Dzula (“Dzula”) earned income as a self-employed

landlord. In August 1992, Dzula transferred one of his rental properties to his ex-wife,

which they represented as a sale in order to obtain financing. Dzula did not report the

sale on his 1992 federal income tax return. The IRS learned of the sale and determined

Dzula had tax deficiencies for 1992, 1993 and 1994, in part as a result of not reporting

the sale.

       Dzula did not pay the additional taxes owed and the IRS filed notices of federal

tax liens on his properties. In 2005, Dzula was forced to sell his rental properties because

of delinquent property taxes among other things. The title company facilitating the sale

sent Dzula’s share of the sale proceeds to the IRS in order to obtain discharges of the

liens. The IRS received a total of $156,670.04 in satisfaction of Dzula’s delinquent 1992,

1993 and 1994 tax liabilities, including penalties and interest.

       Dzula alleges he filed administrative refund claims with the IRS office in Phoenix,

Arizona, in 2005. The IRS has no record of receiving Dzula’s claims. On April 11,

2005, the IRS sent Dzula a notice stating he was entitled to a refund totaling $836.64


       1
        We liberally construe the Dzulas’ pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

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because the payments sent by the title company exceeded Dzula’s tax liabilities. On May

19, 2005, Dzula allegedly sent a letter to the IRS office in Ogden, Utah, acknowledging

receipt of the refund checks and demanding an additional refund of $160,000. Dzula did

not identify any specific factual or legal basis for his demand. In January 2008, Dzula

sent claims to the IRS that he alleges were a second notice of the claims he sent in 2005.

On April 9, 2008, the IRS notified Dzula that the statute of limitations had run on his

refund requests.

       On January 22, 2008, Dzula and his current wife, Joanna Dzula (collectively “the

Dzulas”), filed a pro se complaint against the IRS, seeking a refund of income taxes

collected for the 1992, 1993 and 1994 tax years and consequential damages. The district

court granted the Dzulas’ motion to proceed in forma pauperis (ifp).

       The IRS filed a motion for summary judgment which the district court granted. It

held Joanna lacked standing to contest the tax liabilities at issue because she was not

married to Dzula during the relevant time period. It held it lacked subject matter

jurisdiction over Dzula’s claims because he failed to file proper administrative claims for

refunds. The court entered judgment in favor of the IRS on January 7, 2009.

       Though represented by counsel, the Dzulas filed a pro se motion for

reconsideration on January 22, 2009. The court denied their motion because: (1) the

Local Rules of the District of New Mexico do not permit a party represented by an

attorney to file a pro se motion for reconsideration without leave of the court; and (2) the

motion was untimely under Rule 59(e) of the Federal Rules of Civil Procedure because it

was not filed within ten days of the entry of the judgment and the Dzulas were not

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entitled to relief pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. In any

event, the court noted its order and judgment “represent the correct legal disposition of

this case.” (R. Vol. I at 565.)

                                  II.      DISCUSSION

       The Dzulas challenge the district court’s orders granting summary judgment to the

IRS and denying their motion for reconsideration. Their brief is disjointed and conclusory

— barely comprehensible. However we are able to fill in the blanks from the district

court’s opinion and are thus able to infer the gist of their appeal.

A.     Summary Judgment

       “We review the district court’s grant of summary judgment de novo.” Young v.

Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006). Summary judgment is appropriate “if

the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In conducting our analysis, we

view all of the facts in the light most favorable to the non-movant and draw all reasonable

inferences from the record in favor of the non-moving party.” Young, 468 F.3d at 1249.

       The district court concluded Joanna lacked standing to contest the tax liabilities at

issue because she was not married to Dzula during the relevant time period. On appeal,

the Dzulas argue: “Joanna . . . has standing in this legal Action [sic] since Mrs. Dzula was

a record owner of the Property Sold subject to IRS Lien, and she suffers ongoing

damages as [a] result of foregoing acts of IRS.” (Appellant’s Br. at 7.) In contravention

of Rule 28 of the Federal Rules of Appellate Procedure, the Dzulas do not cite legal


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authority in support of their position. See Fed. R. App. P. 28(a)(9)(A) (an appellate brief

“must contain . . . citations to the authorities and parts of the record on which the

appellant relies”). “When a pro se litigant fails to comply with [Rule 28], we cannot fill

the void by crafting arguments and performing the necessary legal research.” Garrett v.

Selby, Connor, Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (quotations

omitted). We deem an issue waived where, as here, an appellant’s statements in support

of the issue “consist[] of mere conclusory allegations with no citations to the record or

any legal authority . . . .” Id.; see also United States v. Banks, 451 F.3d 721, 728 (10th

Cir. 2006) (declining to address issue for which the appellant provided no supporting

legal authority), cert. denied, 129 S. Ct. 952 (2009).

       The district court held it lacked subject matter jurisdiction over Dzula’s claims

pursuant to 26 U.S.C. § 7422(a) because he failed to file proper administrative claims for

refunds. The Dzulas contend the court had jurisdiction to hear Dzula’s claims. “[T]he

party invoking federal jurisdiction bears the burden of proof.” Butler v. Kempthorne, 532

F.3d 1108, 1110 (10th Cir. 2008) (quotations omitted).

       Pursuant to 28 U.S.C. § 1346(a)(1), district courts have jurisdiction over “[a]ny

civil action against the United States for the recovery of any internal-revenue tax alleged

to have been erroneously or illegally assessed or collected . . . .” However, a party

bringing such an action must exhaust his administrative remedies by filing a timely and

proper refund claim prior to filing suit. See I.R.C. § 7422(a) (“No suit or proceeding

shall be maintained in any court for the recovery of any internal revenue tax alleged to

have been erroneously or illegally assessed or collected . . . until a claim for refund or

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credit has been duly filed with the Secretary, according to the provisions of law in that

regard . . . .”); see also Nick’s Cigarette City, Inc. v. United States, 531 F.3d 516, 520

(7th Cir. 2008) (the procedural requirement of filing a proper administrative claim “has

long been considered a jurisdictional prerequisite”).

       The applicable regulations require that with respect to any refund claim for income

taxes: (1) “the claim with appropriate supporting evidence must be filed with the service

center serving the internal revenue district in which the tax was paid,” and (2) “[t]he

claim must set forth in detail each ground upon which a credit or refund is claimed and

facts sufficient to apprise the Commissioner of the exact basis thereof.” 26 C.F.R. §§

301.6402-2(a)(2), (b)(1). Dzula’s refund requests did not comply with either of these

requirements. Dzula mailed his requests to the IRS Service Center in Phoenix, Arizona,

rather than the IRS Service Center in Austin, Texas, which was the center that served his

district during the relevant time period and was the address listed on the forms.

Moreover, as the district court found, Dzula’s refund claims failed to set forth an

adequate factual or legal basis for the claimed refund.

       Dzula contends the IRS was estopped from arguing the court lacked jurisdiction

due to the fact his refund requests were not properly filed because the IRS acted on the

requests by issuing a partial refund.2 The court rejected this argument because “it is an

open question whether estoppel may ever run against the government” and, in any case,

Dzula “has failed to provide any evidence that would support a claim that the government


       2
         The IRS claims it issued the partial refunds after receiving the checks from the
title company, not as a result of Dzula’s request.

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engaged in affirmative misconduct” which would be necessary to support an estoppel

claim. (R. Vol. I at 524.) We agree with the court’s reasoning and its conclusion.

       The Dzulas also contend the court erred in rejecting their argument that the court

had subject matter jurisdiction by virtue of the informal claim doctrine. The court

recognized:

       The informal claim doctrine mandates that a notice fairly advising the
       Commissioner of the nature of the taxpayer’s claim, which the
       Commissioner could reject as being too general or because it does not
       comply with the formal requirements of the statute and regulations, will
       nevertheless be treated as a claim where formal defects and lack of
       specificity have been remedied by amendment filed after the lapse of the
       statutory period.

(Id. at 524-25.) There are three components to an informal claim; a claim must: (1)

“provide the . . . IRS with notice that the taxpayer is asserting a right to a refund”; (2)

“describe the legal and factual basis for the refund”; and (3) “must have some written

component.” New England Elec. Sys. v. United States, 32 Fed. Cl. 636, 641 (Fed. Cl.

1995). The court concluded this doctrine was inapplicable because “Dzula failed to

describe the legal and factual basis for his refund request.” (Id. at 525.) Again, we agree

with the court’s reasoning and its conclusion.

B.     Motion for Reconsideration

       The district court denied the Dzulas’ pro se motion for reconsideration because,

inter alia, the Local Rules of the District of New Mexico do not permit a party

represented by an attorney to file a pro se motion for reconsideration without leave of the

court. We review the district court’s decision for an abuse of discretion. See Barber ex

rel. Barber v. Colo. Dept. of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (“We review


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a district court’s denial of a Fed.R.Civ.P. 59(e) motion for reconsideration under an abuse

of discretion standard.”); Amundsen v. Jones, 533 F.3d 1192, 1197 (10th Cir. 2008) (“We

review a district court’s application of its local rules for an abuse of discretion.”).

       Rule 83.5 of the Local Rules of the District of New Mexico provides: “A party

who is represented by an attorney may not personally make any filings, other than a

notice of appeal, or represent himself or herself unless otherwise ordered.” The Dzulas

do not dispute they were represented by counsel at the time they filed their pro se motion

for reconsideration; nor do they claim they obtained leave of the court to file their motion

pro se. The district court has considerable latitude in interpreting and applying its local

rules. See Bylin v. Billings, 568 F.3d 1224, 1230 n.7 (10th Cir. 2009) (recognizing “the

wide latitude district courts enjoy in interpreting and administering their own rules”). We

perceive no abuse of discretion.

       AFFIRMED.

                                                Entered by the Court:

                                                Terrence L. O’Brien
                                                United States Circuit Judge




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