IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10258

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

LARRY CECIL CABELKA, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 7:16-CV-126

Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

The United States filed suit in district court to reduce to judgment 

federal income tax assessments owed by Larry Cecil Cabelka for tax years 

1997–2003 and 2005–2009. The district court granted summary judgment in 

favor of the United States, ordering Cabelka to pay $26,400,532.02, plus 

statutory interest, to the Internal Revenue Service as assessed. Cabelka 

appeals the judgment of the district court. We AFFIRM.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 26, 2019

Lyle W. Cayce

Clerk

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I.

On October 19, 2016, the United States filed a civil action against 

Defendant-Appellant Larry Cabelka to reduce to judgment over $25.6 million 

in unpaid federal income taxes, penalties, and interest for tax years 1997, 1998, 

1999, 2000, 2001, 2002, 2003, 2005, 2006, 2007, 2008, and 2009.1 The 

assessments were based upon substitutes for returns prepared by the Internal 

Revenue Service (IRS) pursuant to 26 U.S.C. § 6020(b), due to the failure of 

Cabelka to prepare and file his own federal income tax returns (Forms 1040).2

The United States further alleged that Cabelka failed, neglected, or refused to 

fully pay his income tax liabilities, despite receiving proper notice and 

demands for payment. Cabelka, proceeding pro se, answered the complaint, 

denying liability and asserting claims against his ex-wife, Rebecca Thorp; his 

son, Jared Cabelka; his son’s wife, Bonnie Cabelka; his son’s ex-wife, Amanda 

Slate; and business associates, Kent Price, Price Farms, LLC, Chad Logsdon, 

Billy Logsdon, and Logsdon Farms, Inc. 

The district court ultimately dismissed Cabelka’s claims against the 

aforementioned parties—with the exception of his claim against his ex-wife, 

Rebecca Thorp (Thorp)3—reasoning, in part, that the United States’s suit is 

based on Cabelka’s individual liability for his failure to file income tax returns,

 

1 Tax year 2004 is not at issue in this case. IRS Officer Rice testified that Cabelka 

earned taxable income in 2004 but did not file a tax return. However, no assessment has been 

prepared for 2004. 

2 The Commissioner is required only to prepare the substitute returns “from his own 

knowledge and from such information as he can obtain through testimony or otherwise.” 26 

U.S.C. § 6020(b). “Moreover, the Commissioner may use indirect methods to reconstruct the 

income of a taxpayer who fails to maintain or produce records adequate to allow his correct 

tax liability to be determined.” Gunkle v. Comm'r, 753 F.3d 502, 508 (5th Cir. 2014). 3 Cabelka was married to Rebecca Thorp from December 1969 until their divorce on 

October 19, 2001. 

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a personal and nondelegable duty. The court later granted summary judgment 

in favor of third-party defendant Thorp.4

On August 14, 2017, the Government moved for summary judgment, 

requesting that the district court enter an order reducing to judgment the 

federal income tax liability owed by Cabelka.5 The magistrate judge (MJ) 

recommended that the Government’s motion be granted, and that the court 

reduce to judgment federal income tax liability of Cabelka for tax years 1997–

2003 and 2005–2009 as assessed. Cabelka objected to the MJ’s findings, 

conclusions, and recommendation, alleging that the Government failed to mail 

notice and arguing that there remain material disputes of fact over the validity 

of the Government’s tax assessments. 

On January 29, 2018, the court entered an order overruling Cabelka’s 

objections and accepting the MJ’s findings, conclusions, and recommendation.

The district court entered an amended judgment on January 30, 2018, 

specifying Cabelka’s tax liability for each year at issue, totaling 

$26,400,532.02, plus statutory interest. 

Cabelka timely appealed. On appeal, Cabelka—now represented by 

counsel—claims that the United States “grossly overstated the amount” of his 

income tax liability. Cabelka asserts that the district court erred by 

disregarding evidence he introduced to contradict the contentions of the United 

States, which he asserts should have precluded summary judgment. On 

appeal, Cabelka challenges the timeliness of the Government’s lawsuit to 

reduce the tax assessments to judgment, disputes that the IRS mailed the 

requisite notices of deficiency for tax years 2005–2009, and challenges the 

district court’s acceptance of the Commissioner’s assessments.

 

4 Cabelka did not file an objection to the magistrate judge’s recommendation to grant 

summary judgment in favor of Thorp.

5 The Government filed 48 exhibits in support of its motion for summary judgment. 

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II.

We review a summary judgment de novo, applying the same legal 

standard as the district court. McClendon v. United States, 892 F.3d 775, 780–

81 (5th Cir. 2018). Summary judgment is appropriate where there is no 

genuine issue of material fact and the movant is entitled to judgment as a 

matter of law. Id. (citing Fed. R. Civ. P. 56(a)). All reasonable inferences must 

be drawn in favor of the nonmovant, but the nonmoving party “cannot satisfy 

his summary judgment burden with conclus[ory] allegations, unsubstantiated 

assertions, or only a scintilla of evidence.” Perez v. United States, 312 F.3d 191, 

194–95 (5th Cir. 2002). “In determining whether there is a dispute as to any 

material fact, we consider all of the evidence in the record, but we do not make 

credibility determinations or weigh evidence.” Flock v. Scripto-Tokai Corp., 

319 F.3d 231, 236 (5th Cir. 2003).

Pleadings filed by pro se litigants are “liberally construed” and reviewed 

less stringently than those drafted by attorneys. Perez, 312 F.3d at 194–95 

(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also SEC v. AMX, Int’l, 

Inc., 7 F.3d 71, 75 (5th Cir. 1993) (recognizing the established rule that this 

court “must construe [a pro se party’s] allegations and briefs more 

permissively”). Nevertheless, pro se litigants must submit competent evidence 

to avoid summary judgment. Davis v. Fernandez, 798 F.3d 290, 293 (5th Cir. 

2015). 

III.

Our analysis begins with the basic principle that Cabelka—an individual 

having gross income which undeniably exceeds the threshold amount for each 

taxable year at issue—is required by law to file federal income tax returns. See

26 U.S.C. §§ 6011, 6012, 6017. Additionally, taxpayers must maintain 

adequate records which enable the determination of the correct tax liability. 

Webb v. Comm’r, 394 F.2d 366, 371 (5th Cir. 1968); 26 U.S.C. § 6001. A 

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taxpayer’s duty to timely file a return and pay tax is personal and 

nondelegable. See United States v. Boyle, 469 U.S. 241, 247 (1985). 

Cabelka, a self-employed farmer and businessman, admittedly has not 

filed federal income tax returns since 1990. Specifically, there is no record 

evidence that Cabelka filed returns or paid income taxes for tax years 1997–

2003 and 2005–2009, despite earning taxable income for those years. Although 

the IRS sent notice of its audit, Cabelka failed to cooperate with the IRS and 

never produced records to assist in the IRS’s determination of his income tax 

liability. Further, Cabelka did not petition the United States Tax Court for 

redetermination of the assessed deficiencies within the 90 days provided nor 

has he attempted to voluntarily pay his outstanding tax liabilities.

We have reviewed the briefs, pertinent parts of the record, and the 

applicable law and have heard the arguments of counsel. We are unconvinced 

that the district court erred in this case. Contrary to Cabelka’s argument on 

appeal, the Government’s October 19, 2016 lawsuit was timely filed within ten 

years of the date of the earliest assessment. 26 U.S.C. § 6502(a)(1); see also 

Remington v. United States, 210 F.3d 281, 284 (5th Cir. 2000); United States v. 

McCallum, 970 F.2d 66, 68 n.1 (5th Cir. 1992).

The district court correctly ruled that the United States established 

proper mailing of the notices of deficiency. See Keado v. United States, 853 F.2d 

1209, 1211–12 (5th Cir. 1988). Cabelka’s denial of receipt of the notices is not 

evidence to the contrary. See United States v. McCallum, 20 F.3d 466 (5th Cir. 

1994) (“The dispositive issue is whether the notice [of deficiency] was sent not 

received. . . . [E]vidence that Defendant did not receive the notice of deficiency 

does not create an issue of fact regarding whether the notice was duly sent.”). 

It is well established that an IRS’s assessment of unpaid taxes is entitled 

to a legal presumption of correctness, United States v. Fior D’Italia, Inc., 536 

U.S. 238, 242 (2002), which includes the IRS’s determination of taxable income. 

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Webb, 394 F.2d at 372. Additionally, the United States’s production of the

Certificates of Assessments and Payments (Forms 4340) “constitute[d] valid 

evidence of [Cabelka’s] assessed liabilities and the IRS’s notice thereof.”6 Perez, 

312 F.3d at 195; accord United States v. Burnett, 452 F. App’x 569, 570 (5th

Cir. 2011) (“[T]he district court correctly ruled that the United States 

introduced sufficient evidence of [taxpayer’s] indebtedness by producing the 

relevant Certificates of Assessments and Payments (Form 4340).”); United 

States v. Chila, 871 F.2d 1015, 1018 (11th Cir. 1989) (Form 4340 is 

“presumptive proof of a valid assessment.”).

Upon review, we conclude that Cabelka failed to carry his burden to show 

that the Commissioner’s income tax assessments were erroneous, and thus he

did not rebut the attendant legal presumption of validity. See Gunkle v. 

Comm’r, 753 F.3d 502, 507 (5th Cir. 2014); Marcello v. Comm’r, 380 F.2d 509, 

511 (5th Cir. 1967); Burnett v. Comm’r, 67 F. App’x 248 (5th Cir. 2003); see also

Palmer v. United States, 116 F.3d 1309, 1312 (9th Cir. 1977); United States v. 

Rohner, 634 F. App’x 495, 499–502 (6th Cir. 2015); United States v. Melot, 562 

F. App’x 646, 652 (10th Cir. 2014) (citing United States v. McMullin, 948 F.2d 

1188, 1192 (10th Cir. 1991)). Cabelka’s unsupported claims that he is not liable 

for the assessed taxes lack merit. 

AFFIRMED.

 

6 In addition to Forms 4340, the Government produced further evidence to establish 

the validity of its assessments including Forms 1099; deposition testimony from the IRS 

agent who conducted the bank deposit analysis; deposition testimony from the IRS officer 

who attempted to collect the tax liabilities identifying numerous expensive assets purchased 

by Cabelka during the relevant time, detailed in an IRS asset transcript; audit documentary 

evidence, including explanation of adjustment forms; and deposition testimony from 

Cabelka’s family regarding his lifestyle, the scope of his businesses, his income, and attempts 

to hide his income and assets. 

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