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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

DAVID L. ELMORE, et al.,

Defendants.

CASE NO. C05-810JLR

ORDER

I. INTRODUCTION

This matter comes before the court on a motion for summary judgment from the

Government (Dkt. # 30). Neither party has requested oral argument, and the court finds

the motion suitable for disposition on the basis of the parties’ briefs and supporting

documents. For the reasons stated below, the court GRANTS the Government’s motion

in part and DENIES it in part.

II. BACKGROUND

Defendant David Elmore allegedly underpaid (or failed to pay) federal income tax

between 1987 and 1993. According to the Government, his tax liability over those years,

including statutory penalties, is more than $250,000. With statutory interest through the

end of 2005, Mr. Elmore allegedly owes more than $500,000.

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1

Mr. Elmore has postured himself as a “Belligerent Claimant” in opposing the instant

motion. On occasion, Mr. Elmore has made good on his self-appointed title by inserting

belligerent commentary impugning counsel for the United States as well as this court. The court

has ignored those comments. It cautions Mr. Elmore that his belligerence is neither required, nor

helpful to his cause.

ORDER – 2

In this motion, the Government seeks to reduce its outstanding tax assessments to

judgment. It also seeks to foreclose upon tax liens against a parcel of real property at 413

Prospect Avenue North in Kent, Washington (the “Kent Property”). The court now turns

to each of the Government’s requests separately.

III. ANALYSIS

Before addressing the motion before the court, the court acknowledges that Mr.

Elmore is proceeding in this action without an attorney.1

 For that reason, the court has

construed his pleadings liberally. Mr. Elmore’s status as a pro se party, however, does

not permit the court to overlook applicable law. 

In examining the Government’s summary judgment motion, the court must draw

all inferences from the evidence in the light most favorable to the non-moving party. 

Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is

proper where there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial

burden to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, the opposing

party must show that there is a genuine issue of fact. Matsushita Elect. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The opposing party must present

significant and probative evidence to support its claim or defense. Intel Corp. v. Hartford

Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). For purely legal questions,

summary judgment is appropriate without deference to the non-moving party.

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The court notes that an explanation of the process of assessing and collecting Mr.

Elmore’s alleged liability is largely missing from the Government’s complaint and the instant

motion. In this action, the Government proposes to obtain a judgment of more than $500,000

and to seize Mr. Elmore’s property. To do so without the courtesy of an explanation shows a

disregard for the taxpayer. The Internal Revenue Code imposes obligations on taxpayers that are

straightforward (for example, the notoriously inevitable obligation to pay tax), but also imposes

byzantine obligations that are, at times, a challenge even for this court to interpret, a challenge

that can only be greater for a taxpayer like Mr. Elmore, who is untrained in the law. In opposing

this motion, Mr. Elmore leaves no doubt that he misunderstands many aspects of the

Government’s claims. The Government, in a decision that technically complies with the law but

greatly disappoints the court, did not bother to reply to Mr. Elmore’s submission. 

 

ORDER – 3

A. The United States Has Seven Valid Tax Assessments Against Mr. Elmore.

The Government has submitted verified copies of a “Form 4340” for each of the

tax years 1987-1993. For each tax year, the Form 4340 indicates the Government’s

assessment of Mr. Elmore’s taxable income, the tax assessed, as well as penalties for late

filing, failure to make estimated tax payments, and negligence. Each Form 4340 also

provides entries documenting steps in the Government’s tax collection process. 

In the ordinary case, Form 4340 provides “presumptive evidence” of the valid

assessment of tax. Huff v. United States, 10 F.3d 1440, 1445 (9th Cir. 1993); see also

Hughes v. United States, 953 F.2d 531, 535 (9th Cir. 1992). The court emphasizes the

word “assessment” because it is critical to unraveling the procedural posture of the

Government’s case against Mr. Elmore. Before considering whether the Government’s

Forms 4340 are sufficient evidence to sustain summary judgment against Mr. Elmore, the

court turns to an explanation of the process leading up to the assessment of tax.2

When the Government believes that a taxpayer has underpaid his income tax, it

may determine the amount of underpayment and assess a “deficiency” under 26 U.S.C.

§ 6212(a). The Government must then provide notice of the deficiency to the taxpayer. 

This notice gives the taxpayer who wishes to contest the deficiency only two options. 

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ORDER – 4

The first option is to pay the deficiency, file for a refund with the IRS, and then sue in

federal court if the IRS declines to issue a refund. Roat v. Commissioner, 847 F.2d 1379,

1383-84 (9th Cir. 1988) (citing 26 U.S.C. § 1346). The second option is to, within 90

days (or 150 days for a taxpayer residing outside the country), file a petition in the United

States Tax Court to contest the deficiency. 26 U.S.C. § 6213. 

Mr. Elmore did not take advantage of either option in this case. Each Form 4340

indicates that the Government sent Mr. Elmore a notice of deficiency. He did not pay the

deficiencies and sue for a refund, and that option is no longer available to him, as the

statute of limitations has expired. See 26 U.S.C. § 6511(a). He also did not file a

petition in the Tax Court to contest the deficiency.

Once the time period in which Mr. Elmore could have disputed the deficiency

expired, the Government was entitled to enter an “assessment” of Mr. Elmore’s tax

liability under 26 U.S.C. §§ 6201-03, 6213. As each Form 4340 indicates, the

Government assessed liabilities against Mr. Elmore in 1995 for each year from 1987

through 1993. 

The preceding discussion provides the background for a critical legal distinction: 

Mr. Elmore has lost the opportunity to contest the merits of the Government’s claims for

tax liability. The Government bases its claims on its unsubstantiated allegation that Mr.

Elmore worked as a drywall installer during the tax years in question and did not report

his income. Using a method not apparent from the record, the Government estimated Mr.

Elmore’s income and determined a tax deficiency based on that estimate. Mr. Elmore

correctly notes that the Government has offered no evidence to prove any of these

allegations. The Government has not proven that he had any income during those tax

years, much less the amount of his income. He also asserts that the Government has

refused to provide evidence when he requested it. What Mr. Elmore does not appreciate,

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ORDER – 5

however, is that in this proceeding, the Government does not have to prove that its

assertion of a tax deficiency was justified. In order to contest the merits of the

Government’s claim of a tax deficiency, Mr. Elmore needed to take appropriate measures

more than ten years ago. He did not, and it is too late to do so now.

Mr. Elmore’s challenge is now limited to contesting the procedural validity of the

Government’s assessments against him. As the court has already noted, a Form 4340 is

presumptive evidence of a procedurally valid assessment. The procedure for entering an

assessment is set forth at 26 C.F.R. § 301.6203-1. Although the regulation requires the

Government to base an assessment on “supporting records,” the assessment itself need

not include those records. 26 C.F.R. § 301.6203-1. The assessment need only state the

taxpayer’s name and identifying information, the “character of the liability assessed, the

taxable period, . . . and the amount of the assessment.” Id. Even “if the taxpayer requests

a copy of the record of assessment,” he is entitled to no more than the “parts of the

assessment which set forth the name of the taxpayer, the date of assessment, the character

of the liability assessed, the taxable period, if applicable, and the amounts assessed.” Id. 

In this case, the Government has provided records of assessment (the Forms 4340)

that provide all of the required information. Mr. Elmore therefore bears the burden of

rebutting the presumption that the information is accurate. He has not done so. He

claims that Linda Drake, the IRS officer who certified each Form 4340, does not have

first-hand knowledge of the underlying information. This is no doubt true, but the Forms

4340 are business records of the IRS, and therefore Ms. Drake’s certification is sufficient

to bring them within the scope of the hearsay exception of Fed. R. Evid. 803(6) and Fed.

R. Evid. 803(8). Hughes, 953 F.2d at 539-40. Mr. Elmore also contends that the

documents violate his Sixth Amendment right to confront witnesses. The Sixth

Amendment, however, applies only in criminal prosecutions. Finally, Mr. Elmore

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ORDER – 6

contends that the Government has failed to provide copies of many of the forms

underlying the assessments against him, including the “Form 23C” on which an

assessment is principally based. As the court noted, however, the applicable regulation

only requires the Government to provide a summary record of the assessment. See 26

C.F.R. § 301.6203-1; see also Hughes, 953 F.2d at 940 (“Forms [4340] are not merely a

summary record of the proof, but are themselves proof that assessments were made”); see

also Huff, 10 F.3d at 1446 (requiring that the Government provide the date of the 23C

assessment, but not the 23C form itself). In Huff, the court declined to rule in the

Government’s favor because the Forms 4340 in that case did not include the date on

which the Government made the 23C assessment. 10 F.3d at 1446 & n.5 (citing cases

reaching similar results). By contrast, the Forms 4340 that the Government provided in

this case provide a “23C date” for every assessment against Mr. Elmore.

The Government has presented presumptive proof of valid assessments against Mr.

Elmore, and Mr. Elmore has not rebutted the presumption of validity. Mr. Elmore

contends that there are “issues of material fact” that preclude summary judgment. The

court finds that any “issues of fact” are immaterial here. Mr. Elmore has unsuccessfully

argued that the Government failed to follow the law in issuing tax assessments against

him. His arguments are premised on a misunderstanding of the law, not on facts that

would undermine the procedural validity of the assessments. The court thus holds that

the seven assessments against Mr. Elmore are valid. As the court will discuss at the

conclusion of this order, the Government may obtain judgment on those assessments

upon presenting a proper motion for judgment.

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3

The court notes that Mr. Elmore has again raised a dispute about the Government’s

seizure (and apparent sale) of his property in Renton, Washington. As the court noted in its May

2005 order denying Mr. Elmore’s motion for injunctive relief (Dkt. # 7), the Renton property is

not before the court in this action. 

ORDER – 7

B. The Government Has Not Established that Foreclosure On Its Tax Liens is an

Appropriate Remedy.

The Government has endeavored to collect on its assessments against Mr. Elmore

by, among other things, levying upon his Kent Property.3

 On March 5, 1996, the

Government recorded two tax liens on the Kent Property for the cumulative amount of

the seven assessments against Mr. Elmore. Under 26 U.S.C. § 6321, the assessments

gave rise to a lien against “all property and rights to property, whether real or personal,

belonging to” Mr. Elmore. Under 26 U.S.C. § 7403, the Government has a cause of

action in this court to foreclose upon its tax liens. 

As an initial matter, the court notes that when the Government brought this action,

there appeared to be two other parties with potential claims to the Kent Property, Stephen

Hehr and Charon Gooding. The Government has now resolved those claims. Mr. Hehr

has disclaimed any interest in the Kent Property and the court has accordingly dismissed

him from this action (Dkt. ## 24, 26). The Government has stipulated that Ms. Gooding

has a secured interest in the Kent Property that is senior to any interest the Government

might have. On the basis of that stipulation, the court has dismissed Ms. Gooding as well

(Dkt. ## 31, 32). Mr. Elmore has not disputed Mr. Hehr’s disclaimer of interest or Ms.

Gooding’s assertion of interest.

The Government’s foreclosure request is not appropriate for summary judgment on

the record before the court. The Government’s argument in favor of foreclosure amounts

to an assertion that it has liens, that it has recorded liens, and now the court must order a

sale of the Kent Property. The Government does not establish that it timely notified Mr.

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The court has not addressed the Government’s claims for statutory interest on the

assessments. When the Government requests judgment, it must submit evidence of the amount of

interest accrued to the date of the request, and support any computation with competent

evidence.

ORDER – 8

Elmore of the liens, as 26 U.S.C. § 6320 requires. Moreover, the Government has not

acknowledged that foreclosure of a tax lien is not the Government’s right, but rather a

matter of the court’s discretion. See 26 U.S.C. § 7403(c) (noting that a court “may decree

a sale of such property”) (emphasis added); United States v. Rodgers, 461 U.S. 677, 708-

09 (1983); United States v. Gibson, 817 F.2d 1406, 1407-08 (9th Cir. 1987). Before the

court exercises its discretion, the Government must provide adequate evidence that it has

complied with statutory formalities, and that this is a case that warrants foreclosure as

opposed to another remedy. In short, the Government must provide more than two

cursory paragraphs of briefing (Gov’t Mot. at 6-7) and copies of two tax liens before the

court will permit it to seize Mr. Elmore’s property. 

IV. CONCLUSION

 For the reasons stated above, the court GRANTS the Government’s motion for

summary judgment (Dkt. # 30) to the extent that it seeks to establish the validity of its

assessments against Mr. Elmore.4

 The court also GRANTS the motion to the extent that

it establishes the interests of Mr. Hehr and Ms. Gooding in the Kent Property. The court

DENIES the motion in all other respects. The court’s denial of the motion is without

prejudice to the Government bringing another motion in support of its request for

foreclosure.

Finally, the court notes that it will not enter a final judgment in this action until the

Government discloses how much money it has recovered in its parallel collection

proceedings against Mr. Elmore. Mr. Elmore’s briefing suggests that the Government has

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ORDER – 9

already sold one of his properties. Any judgment in this action will reflect an offset for

proceeds the Government has netted from that sale, as well as any other successful

collection efforts.

Dated this 2nd day of March, 2006.

A 

JAMES L. ROBART

United States District Judge

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