     Case: 09-40837     Document: 00511185698          Page: 1    Date Filed: 07/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            July 26, 2010

                                     No. 09-40837                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA, Department of Justice,

                                                   Plaintiff - Appellee
v.

GORDON RAMZAN NIAMATALI,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:07-cv-108


Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        The United States filed suit against Gordon Niamatali to recover unpaid
taxes. After a bench trial, Niamatali was ordered to pay substantial sums. On
appeal, he challenges the precise calculation of his income tax liability, penalties,
and additions. We AFFIRM the judgment except as to one of the penalties. We
VACATE the judgment for a recalculation of a specific penalty in light of the
Government’s admission of error regarding it.


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-40837

      In 2000 and 2001, Niamatali was a practicing anesthesiologist working as
an independent contractor and also as an employee in McAllen, Texas. After
Niamatali failed to file federal income tax returns in both years, the Internal
Revenue Service prepared substitute tax returns on his behalf.
      Over the ensuing years, the IRS issued a statutory notice of deficiency and
sent Niamatali several notices related to the deficiency and its intent to levy. In
2004, the IRS issued a Form 4340 for each tax year, assessing the liabilities,
additions, and interests. The IRS also recorded a notice of federal tax lien with
the county clerk in Hidalgo County, Texas. Subsequently, Niamatali filed tax
returns for the tax years of 2000 and 2001.        He reported no tax liability,
attaching a brief to the 2000 tax return explaining his position. Through a levy,
the IRS obtained a portion of the balance due from Niamatali.
      On May 8, 2007, the United States brought suit in federal district court
seeking to reduce to judgment the federal income tax assessments against
Niamatali and to foreclose the federal tax liens against two parcels of his
property.   During a two-day bench trial, Niamatali advanced several tax
protestor arguments and also challenged the calculation of taxes, penalties, and
additions imposed.    Both Niamatali and the Government offered witnesses
testifying to the amount Niamatali owed the Government.
      The court ruled for the Government. It entered a judgment establishing
Niamatali’s tax liabilities, penalties, and additions, and authorizing the
Government to foreclose on the federal tax liens against his property.
      Proceeding pro se on appeal, Niamatali argues that the district court erred
in ordering statutory penalties and in accepting the Government’s assessment
and accounting of payments due instead of his accounting.
      On appeal after a bench trial, we review findings of fact for clear error and
legal conclusions de novo. Villafranca v. United States, 587 F.3d 257, 260 (5th
Cir. 2009). “A factual finding is not clearly erroneous as long as it is plausible


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                                  No. 09-40837

in the light of the record read as a whole.” Id. (citation and quotation marks
omitted).
      Tax assessments by the IRS are presumed correct; the taxpayer bears the
burden of overcoming that presumption by a preponderance of the evidence.
United States v. Lochamy, 724 F.2d 494, 497-98 (5th Cir. 1984).               The
Government supported its assessments for 2000 and 2001 with Forms 4340.
“IRS Form 4340 constitutes valid evidence of a taxpayer’s assessed liabilities and
the IRS’s notice thereof.” Perez v. United States, 312 F.3d 191, 195 (5th Cir.
2002) (citation omitted).     The Government also offered a transcript of
information reported to the IRS by third parties. At trial, an IRS compliance
officer and an IRS reports analyst testified. Niamatali testified on his own
behalf and introduced as a witness the tax consultant who prepared his tax
returns.
      Upon review of the testimony, we conclude it was not clearly erroneous for
the court to reject Niamatali’s calculations. Niamatali’s conclusional assertions
do not overcome the presumption of correctness to which the IRS’s assessments
are entitled.
      Moreover, we are not convinced by Niamatali’s contention that the Form
4340 was insufficient because the Government did not produce a Form 23C
assessment certificate. The Form 4340 provided Niamatali with the information
required. See Treas. Reg. § 301.6203-1.
      On appeal, the Government concedes error in its assessing the failure-to-
pay penalty under I.R.C. § 6651(a)(2).
      We AFFIRM the judgment in all respects except for the assessment of the
Section 6651(a)(2) penalty as to each tax year. As to that penalty, we VACATE
and REMAND to the district court for further proceedings.




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