                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 6, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 12-1481
                                              (D.C. No. 1:11-CV-00274-RBJ-MEH)
LAURENCE R. GOODMAN,                                       (D. Colo.)

             Defendant-Appellant,

and

COUNTY OF GILPIN, COLORADO;
COLORADO DEPARTMENT OF
REVENUE; PATRICK MAXWELL;
JAN INGEBRIGSTEN,

             Defendants.


                            ORDER AND JUDGMENT*


Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.




*
      After examining the briefs and appellate record, this panel has determined
unanimously 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). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Defendant Laurence R. Goodman failed to file income tax returns for multiple

years, prompting the Internal Revenue Service (IRS) to assess substantial tax

liabilities. The United States filed this action to reduce the assessments to judgment

and to foreclose on real property owned by Mr. Goodman in Golden, Colorado.

Following disposition of cross-motions for summary judgment, the district court

entered judgment in favor of the United States in the amount of $1,375,062.69, plus

penalties and interest, and issued an order of foreclosure and decree of sale with

respect to the Golden property. Mr. Goodman now appeals. Finding his objections

to the district court’s disposition meritless, we affirm.

       We review summary judgment de novo, applying the same standard used by

the district court. United States v. Botefuhr, 309 F.3d 1263, 1270 (10th Cir. 2002).

We will thus affirm the grant of summary judgment in favor of the IRS if it has

“show[n] that there is no genuine dispute as to any material fact and [it] is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In the present context, the IRS

was entitled to judgment as a matter of law if (1) the assessment was supported by a

minimal evidentiary foundation—“some substantive evidence . . . demonstrating that

the taxpayer received unreported income”—thereby raising a presumption that it was

correct, and (2) Mr. Goodman failed to present substantial evidence to overcome the

presumption. United States v. McMullin, 948 F.2d 1188, 1192 (10th Cir. 1991)

(discussing basis for directed verdict in favor of IRS).




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      Mr. Goodman stopped filing returns in 1997. Using its Information Reporting

Program Transcripts (“IRP Transcripts”), which reflect taxpayer data reported on

such forms as W-2s, 1098s, and 1099s, the IRS assessed substantial deficiencies

against Mr. Goodman for the tax years 1997-2000. This assessment is summarized in

a sworn declaration by a revenue officer whose duties include researching and

computing outstanding taxpayer balances. The IRP Transcripts attached to the

declaration total nearly sixty pages and reflect information from accounts attributed

to Mr. Goodman, as reported by third parties such as investment-management

company Burke Christiansen and Lewis Securities, Inc., Norwest Bank, and Bellco

Credit Union. Also attached to the declaration are notices of deficiency sent to

Mr. Goodman, who returned them with objections regarding the fictional nature of

the IRS and the fraudulent character of its actions. The United States filed all of this

material in support of its motion for summary judgment. The district court concluded

that this showing was sufficient to raise the presumption that the IRS assessment was

correct and, because Mr. Goodman failed to offer any evidence to rebut the

presumption, the United States was entitled to summary judgment.

      Mr. Goodman’s overarching objection is that the IRS materials, in particular

the IRP Transcripts, were inadmissible and insufficient to support the presumption of

correctness invoked by the United States. The IRP Transcripts and the information

they contain, routinely compiled by the IRS from legally mandated reports submitted

by third parties in the normal course of business, were admissible under the


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business-record and public-record hearsay exceptions in Fed. R. Evid. 803(6) and (8).

See, e.g., United States v. Hayes, 861 F.2d 1225, 1228 (10th Cir. 1988); Hughes v.

United States, 953 F.2d 531, 539-40 (9th Cir. 1992). And the declaration that

accompanied this documentation provided adequate foundation and authentication.

See Hayes, 861 F.2d at 1228 (recognizing adequacy of similar representations by IRS

employee at trial). As for evidentiary sufficiency, the IRS materials reflecting

assessments made on the basis of specific third-party reports of income satisfied the

minimal evidentiary foundation required to trigger the presumption of correctness.

See, e.g., Hardy v. C.I.R., 181 F.3d 1002, 1005 (9th Cir. 1999) (holding presumption

triggered by Commissioner’s submission of worksheets calculating deficiency based

on report of income from taxpayer’s employer).

      Mr. Goodman also advances a number of secondary objections clearly lacking

in merit. He contends that disposition of this case on summary judgment denied his

right to a jury trial. But “[t]he law is well-settled that summary judgment does not

violate the Seventh Amendment” right to a jury trial. J.R. Simplot v. Chevron

Pipeline Co., 563 F.3d 1102, 1117 (10th Cir. 2009). He objects to the United States

bringing an action to seize property without an underlying judicial judgment,

assertedly in violation of due process. As the United States points out, however, both

the judgment and ultimate decree of foreclosure were obtained—with all process

due—in this same action. It is common, and entirely proper, for the government to

proceed in this way, pursuant to 26 U.S.C. §§ 7401 - 7403, seeking both to reduce an


                                         -4-
assessment to judgment and foreclose on property to satisfy associated tax liens.

See, e.g., United States v. Henshaw, 388 F.3d 738, 740 (10th Cir. 2004); United

States v. Gibbons, 71 F.3d 1496, 1498 (10th Cir. 1995). Mr. Goodman complains in

passing that the government’s motion for summary judgment put pressure on him to

offer testimony in support of his case, burdening his Fifth Amendment right against

self-incrimination. But the Fifth Amendment is not “a sword whereby a [party]

asserting the privilege would be freed from adducing proof in support of a burden

which would otherwise have been his.” United States v. Rylander, 460 U.S. 752, 758

(1983). “In other words, a party who asserts the privilege against self-incrimination

must bear the consequences of lack of evidence.” United States v. $148,840.00 in

United States Currency, 521 F.3d 1268, 1274 (10th Cir. 2008) (internal quotation

marks omitted). Finally, Mr. Goodman’s briefing includes numerous obscure or

inapposite legal references, as well as impertinent remarks about the government and

the district court, which do not warrant further comment here.

      The judgment of the district court is affirmed.


                                               Entered for the Court


                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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