NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

WALTER JAMES KUBON; VALLY 

KUBON, 

Defendants-Appellants, 

and 

STATE OF CALIFORNIA FRANCHISE 

TAX BOARD, 

Defendant.

No. 19-16059 

D.C. No. 4:18-cv-04788-PJH 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAR 6 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 19-16059 

Walter James Kubon and Vally Kubon appeal pro se from the district court’s 

summary judgment for the United States in its action to collect the Kubons’ unpaid 

and delinquent federal taxes from the 2002 through 2004 tax years and to foreclose 

on their property. We have jurisdiction under 28 U.S.C. § 1291. We review de 

novo. Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992). We affirm. 

The district court properly granted summary judgment for the United States 

because the Kubons failed to raise a genuine dispute of material fact as to whether

the tax assessments against them or the liens against their property were invalid. 

See 26 U.S.C. § 7403(c) (authorizing the district court to decree a sale of property 

subject to a federal tax lien); Palmer v. IRS, 116 F.3d 1309, 1312 (9th Cir. 1997) 

(explaining that the IRS’s deficiency determinations are entitled to the presumption 

of correctness unless the taxpayer submits competent evidence that the assessments 

were “arbitrary, excessive, or without foundation”); United States v. Polk, 822 F.2d 

871, 873 (9th Cir. 1987) (a federal tax lien is presumptively valid if Form 668 is 

properly completed and filed in the correct location). 

The district court did not abuse its discretion by denying the Kubons’ motion 

to disqualify the district court judge because the Kubons presented no basis for 

disqualification. See United States v. McTiernan, 695 F.3d 882, 891-92 (9th Cir. 

2012) (setting forth standard of review and circumstances requiring recusal).

The district court properly dismissed the Kubons’ counterclaims because 
 3 19-16059 

the Kubons failed to allege facts sufficient to state a plausible claim. See Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible 

on its face” (citation and internal quotation marks omitted)); Adams v. Johnson,

355 F.3d 1179, 1184-86 (9th Cir. 2004) (taxpayers cannot sue government officials 

for alleged constitutional violations regarding tax assessment and collection).

The district court properly denied the Kubons’ motion to dismiss because the 

Kubons set forth no basis to dismiss the government’s complaint. See, e.g., 26 

U.S.C. § 7402; 28 U.S.C. §§ 1340, 1345; United States. v. Studley, 783 F.2d 934, 

937 (9th Cir. 1986) (rejecting as frivolous taxpayer’s argument that she was not a 

person or citizen subject to federal tax laws). 

We do not consider matters not specifically and distinctly raised and argued 

in the opening brief, or arguments and allegations raised for the first time on 

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). 

All pending motions are denied. 

AFFIRMED.