         09-1616-cv
         Stein v. The United States of America


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.    CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION: “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

              At a stated term of the United States Court of Appeals for
         the Second Circuit, held at the Daniel Patrick Moynihan United
         States Courthouse, 500 Pearl Street, in the City of New York, on
         the 14th day of May, two thousand ten.

         PRESENT:
                   JON O. NEWMAN,
                   JOHN M. WALKER, JR.,
                   GERARD E. LYNCH,
                          Circuit Judges.
         ____________________________________

         Gabor Stein,

                                      Plaintiff-Appellant,

                            v.                                        09-1616-cv

         The United States of America,

                                      Defendant-Appellee.

         _____________________________________
1        FOR APPELLANT:           Gabor Stein, pro se, New York, New York.
2
3        FOR APPELLEE:                            Natalie N. Kuehler, Sarah S. Normand,
4                                                 Assistant United States Attorneys for
5                                                 Preet Bharara, United States Attorney
6                                                 for the Southern District of New York,
7                                                 New York, New York.
8
9                 Appeal from a judgment of the United States District Court

10       for the Southern District of New York (McKenna, J.).
1         UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

2    DECREED that the judgment of the district court be AFFIRMED.

3         On this appeal from the district court’s judgment, appellant

4    seeks review of the court’s order granting summary judgment to

5    Appellee in this action for a refund of $19,116 paid toward Trust

6    Fund Recovery Penalties ("TFRP") of $52,369, and an injunction

7    barring the collection of the balance.

8         This Court reviews an order granting summary judgment de

9    novo, and asks whether the district court properly concluded that

10   there were no genuine issues of material fact and that the moving

11   party was entitled to judgment as a matter of law.    See Miller v.

12   Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).     In

13   determining whether there are genuine issues of material fact,

14   this Court is "required to resolve all ambiguities and draw all

15   permissible factual inferences in favor of the party against whom

16   summary judgment is sought."   Terry v. Ashcroft, 336 F.3d 128,

17   137 (2d Cir. 2003), quoting Stern v. Trustees of Columbia Univ.

18   in City of New York, 131 F.3d 305, 312 (2d Cir. 1997).   However,

19   "conclusory statements or mere allegations [are] not sufficient

20   to defeat a summary judgment motion."    Davis v. State of New

21   York, 316 F.3d 93, 100 (2d Cir. 2002).   "The nonmoving party must

22   'go beyond the pleadings, and by [his or] her own affidavits, or

23   by the "depositions, answers to interrogatories, and admissions

24   on file," designate "specific facts showing that there is a


                                     2
1    genuine issue for trial."'" Id., quoting Celotex Corp. v.

2    Catrett, 477 U.S. 317, 324 (1986), quoting Fed. R. Civ. P. 56(e).

3         In Malkin v. United States, 243 F.3d 120 (2d Cir. 2001),

4    this Court affirmed the dismissal of a refund action, following a

5    bench trial, where the taxpayer argued that the IRS failed to

6    demonstrate execution of a waiver of the statute of limitations,

7    because it had lost or destroyed the original waiver form, and

8    presented only contemporaneous entries in its computer system to

9    demonstrate its receipt.   This Court found that those entries,

10   taken with IRS employees' testimony as to their general practice,

11   were sufficient to demonstrate that the taxpayer had executed the

12   form, rejecting the arguments that the record was unreliable and

13   the agent had a motive to forge the form as speculative and

14   unsupported by any evidence.    See id. at 123-24.

15        Here, as in Malkin, the Government properly demonstrated by

16   contemporaneous entries in its computer system and the testimony

17   of Internal Revenue Service (“IRS”) employees, that Appellant

18   executed and returned to the IRS a waiver of the statute of

19   limitations extending the time for assessment of TFRP until

20   December 31, 2002.   See id.   At his deposition, Appellant

21   testified that he did not recall whether he executed the form,

22   and in opposition to the motion for summary judgment, presented

23   only speculative arguments that the form noted in the IRS

24   computer system might not have been executed by him or might not

25   have extended the time until December 31, 2002.      Accordingly, the

                                       3
1    district court properly concluded that Appellant failed to

2    present evidence raising a genuine issue of material fact

3    sufficient to defeat the motion for summary judgment.    See Davis,

4    316 F.3d at 100.

5         We have considered all of Appellant’s arguments on appeal

6    and find them to be without merit.    Accordingly, the judgment of

7    the district court is AFFIRMED.

8                                  FOR THE COURT:
9                                  Catherine O’Hagan Wolfe, Clerk

10




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