UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MICHAEL E. LUNNON, 

 Plaintiff Counter Defendant - 

 Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Defendant Counterclaimant - 

 Appellee, 

and 

THE UPS STORE, INC.; T.W. LYONS, 

 Defendants - Appellees. 

No. 21-2140 

(D.C. No. 1:16-CV-01152-MV-JFR) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges. 

_________________________________ 

Michael E. Lunnon brought multiple claims against defendants arising from 

attempts by the Internal Revenue Service (“IRS”) to collect taxes Lunnon allegedly 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 16, 2022

Christopher M. Wolpert 

Clerk of Court

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owed for certain tax years. The United States filed counterclaims seeking to reduce 

to judgment Lunnon’s tax liabilities for other tax years. The district court entered 

judgment in favor of defendants on Lunnon’s claims and in favor of the United States 

on its counterclaims. Appearing pro se, Lunnon appeals. Exercising jurisdiction 

under 28 U.S.C. § 1291, we affirm the district court’s rulings but with one 

exception—we vacate the grant of summary judgment to the United States on 

Lunnon’s 28 U.S.C. § 6213(a) claim and remand to the district court with instructions 

to dismiss the § 6213(a) claim without prejudice for lack of jurisdiction based on 

sovereign immunity. 

I. Factual and procedural background 

LG Kendrick, LLC (“Kendrick”), was formed in 2009, and Lunnon is 

Kendrick’s sole member. Kendrick has a franchise agreement with The UPS Store, 

Inc. (“TUPSS”), and operates a UPS Store in New Mexico. In 2011, the IRS 

determined that Kendrick was Lunnon’s alter ego. In an effort to collect income 

taxes Lunnon allegedly owed for tax years 1998, 1999, and 2005, Revenue Officer 

T.W. Lyons issued a Notice of Federal Tax Lien to Kendrick as Lunnon’s alter ego. 

Lyons also sent a Notice of Levy on Wages, Salary, and Other Income (“Notice of 

Levy”) to TUPSS (then operating under the name Mail Boxes Etc., Inc.) requiring 

TUPSS to turn over to the IRS money TUPSS owed Kendrick as Lunnon’s alter ego. 

In 2015, Lyons sent TUPSS another Notice of Levy to Kendrick as Lunnon’s alter 

ego in an effort to collect taxes Lunnon owed for tax years 2006 through 2009. From 

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2011 through February 2018, TUPSS continuously sent the IRS money (more than 

$65,000) TUPSS owed Kendrick. 

In 2016, Lunnon filed the pro se action underlying this appeal against the 

United States, Lyons, and TUPSS. Lunnon, who is not an attorney, initially listed 

himself and Kendrick as plaintiffs. However, in the operative amended complaint, 

and after the court informed him that he could not represent Kendrick, he listed only 

himself as plaintiff but alleged Kendrick had assigned to him all of its rights to the 

claims he asserted.1

 The amended complaint asserted five claims. The first three 

claims were brought against the United States: (1) declaratory judgment regarding 

the alter-ego determination; (2) tax refund; and (3) damages for unauthorized 

collection. The fourth claim asserted that Lyons and TUPSS violated the Racketeer 

Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961–1968 (“RICO”). And 

the “sixth” claim (there was no fifth claim) was for breach of contract against 

TUPSS. The United States filed counterclaims seeking to reduce to judgment income 

tax assessments against Lunnon for tax years 2006 through 2018 and 26 U.S.C. 

§ 6672 penalties (related to employment withholding taxes) for all four quarters of 

2010. 

In orders adopting a series of magistrate judge’s recommendations, the district 

court dismissed some claims, granted summary judgment to defendants on the 

remaining claims, and granted summary judgment to the United States on its 

1

 An attorney entered an appearance for Kendrick in July 2017 but withdrew in 

February 2018, before Lunnon filed the amended complaint in September 2018. 

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counterclaims. Lunnon now challenges the district court’s rulings on claims one, 

two, and four, the court’s grant of summary judgment to the United States on its 

counterclaims, and the court’s denial of his motion to dismiss the counterclaims. 

II. Discussion 

A. Claim one: Declaratory judgment 

In claim one, Lunnon sought a declaratory judgment against the United States 

that Kendrick was not Lunnon’s alter ego. The district court dismissed the claim for 

lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) based on the Declaratory 

Judgment Act’s prohibition on declaratory judgments “with respect to Federal taxes,” 

28 U.S.C. § 2201(a) (“DJA”). We review a Rule 12(b)(1) dismissal de novo. 

Tompkins v. U.S. Dep’t of Veterans Affs., 16 F.4th 733, 741 (10th Cir. 2021). We 

construe Lunnon’s pro se filings liberally, but we may not act as his advocate. See 

Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 

Relying on Green Solution Retail, Inc. v. United States, 855 F.3d 1111 

(10th Cir. 2017), Lunnon argues that the DJA’s prohibition on declaratory judgments 

“with respect to Federal taxes” extends no further than the Anti-Injunction Act’s 

prohibition on suits brought “for the purpose of restraining the assessment or 

collection of any tax,” 26 U.S.C. § 7421(a) (“AIA”). Although Lunnon correctly 

notes Green’s statement that the DJA and AIA are “coterminous,” 855 F.3d at 1115 

(internal quotation marks omitted), Green did not hold that the DJA’s prohibition was 

limited to suits attempting to restrain the assessment or collection of taxes. Instead, 

Green discussed the relationship between the AIA and the DJA only to point out that 

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the plaintiff could not “make an end-run around the AIA” by relying on the DJA 

because they both barred suits seeking to restrain tax assessment or collection. See 

id. at 1114–15. Significantly, Green went on to reaffirm an earlier Tenth Circuit 

holding “that the AIA applies ‘not only to the actual assessment or collection of a 

tax, but is equally applicable to activities leading up to, and culminating in, such 

assessment and collection.’” Id. at 1116 (quoting Lowrie v. United States, 824 F.2d 

827, 830 (10th Cir. 1987)); see also id. at 1117–20 (explaining why Lowrie’s holding 

is still good law). The IRS’s alter-ego determination here was such an activity, so it 

falls within the meaning of “with respect to Federal taxes” in the DJA even if the 

DJA prohibits nothing more than the AIA. The district court, therefore, properly 

dismissed claim one for lack of jurisdiction. 

B. Claim two: Refund claim under 26 U.S.C. §§ 6213(a) and 6330 

In claim two, Lunnon sought an “automatic refund,” R., Vol. 1 at 176, of funds 

the IRS had collected from Kendrick under the 2011 levy. He advanced two theories: 

(1) the IRS had not sent him a notice of deficiency as required by 26 U.S.C. 

§ 6213(a); and (2) the IRS had not sent him a notice of its intent to levy and his right 

to a collection due process hearing under 26 U.S.C. § 6330. 

In relevant part, § 6213(a) provides that a taxpayer may seek a refund of taxes 

collected without proper issuance of a notice of deficiency: 

Within 90 days . . . after the notice of deficiency authorized in section 6212 

is mailed . . . , the taxpayer may file a petition with the Tax Court for a 

redetermination of the deficiency. . . . [N]o assessment of a deficiency in 

respect of any tax imposed . . . and no levy or proceeding in court for its 

collection shall be made, begun, or prosecuted until such notice has been 

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mailed to the taxpayer, nor until the expiration of such 90-day . . . period, 

. . . nor, if a petition has been filed with the Tax Court, until the decision of 

the Tax Court has become final. Notwithstanding the provisions of section 

7421(a) [the AIA], the making of such assessment or the beginning of such 

proceeding or levy during the time such prohibition is in force may be 

enjoined by a proceeding in the proper court, including the Tax Court, and 

a refund may be ordered by such court of any amount collected within the 

period during which the Secretary is prohibited from collecting by levy or 

through a proceeding in court under the provisions of this subsection. 

The relevant part of § 6330 provides: “No levy may be made on any property 

or right to property of any person unless the Secretary has notified such person in 

writing of their right to a hearing under this section before such levy is made.” 

§ 6330(a)(1). 

The United States moved to dismiss the § 6330 claim for lack of subject matter 

jurisdiction based on sovereign immunity. The district court granted that motion. In 

his recommendation, the magistrate judge determined that § 6213’s refund 

mechanism did not waive the United States’ sovereign immunity for a § 6330 claim. 

The magistrate judge also rejected Lunnon’s argument that his § 6330 claim could 

proceed under 28 U.S.C. § 1346(a)(1), which grants district courts original 

jurisdiction over civil actions to recover taxes erroneously or illegally assessed or 

collected. The magistrate judge concluded that for § 1346(a)(1) to waive sovereign 

immunity, Lunnon first had to exhaust his administrative remedies by filing a claim 

for a refund or credit, as required under 26 U.S.C. § 7422(a), and Lunnon had not 

alleged or shown he had done so. The district court adopted the recommendation 

over Lunnon’s objections. 

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The United States and Lunnon filed cross-motions for summary judgment on 

the § 6213(a) claim. The government advanced multiple theories in support of its 

motion, including that Lunnon could not proceed under § 6213(a) to recover levied 

funds belonging to Kendrick, Lunnon failed to exhaust by not filing an administrative 

refund claim per § 7422, and the IRS in fact sent the notices of deficiency. The 

district court denied Lunnon’s motion and granted the United States’ motion based 

solely on the last of the government’s theories, finding that the government had 

provided sufficient admissible and unrebutted evidence of the proper mailing of 

notices of deficiency for the tax years at issue. 

On appeal, the United States argues that because Kendrick is the proper 

plaintiff for claim two, Lunnon lacks Article III and prudential standing to assert 

Kendrick’s claims. We need not resolve this issue because we can affirm the district 

court’s dismissal of claim two based on a different jurisdictional ground—sovereign 

immunity. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 

431 (2007) (explaining that “a federal court has leeway to choose among threshold 

grounds for denying audience to a case on the merits” (internal quotation marks 

omitted)); FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is 

jurisdictional in nature.”). We first address the § 6330 claim, then proceed to the 

§ 6213(a) claim. 

1. Section 6330 claim 

As noted, the district court resolved the § 6330 portion of claim two by 

dismissing it on the ground of sovereign immunity. “We review de novo the district 

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court’s dismissal based on sovereign immunity.” Mojsilovic v. Okla. ex rel. Bd. of 

Regents for Univ. of Okla., 841 F.3d 1129, 1131 (10th Cir. 2016). In his objections 

to the magistrate judge’s recommendation on the § 6330 claim, Lunnon’s sole 

argument was that the magistrate judge should not have considered the government’s 

§ 7422(a) argument because it was raised for the first time in the government’s reply 

brief. Because Lunnon did not object to the magistrate judge’s sovereign immunity 

analysis, our firm waiver rule precludes appellate review unless Lunnon satisfies that 

rule’s interests-of-justice exception. See Morales-Fernandez v. INS, 418 F.3d 1116, 

1119 (10th Cir. 2005) (discussing firm waiver rule and its exceptions).2

 The 

interests-of-justice exception “is similar to reviewing for plain error.” Id. at 1120. 

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects 

substantial rights, and which (4) seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Id. at 1122–23 (internal quotation marks 

omitted). 

We conclude Lunnon has not shown plain error. His merits argument centers 

on the phrase “provisions of law in that regard” in § 7422(a), which provides: 

No suit prior to filing claim for refund.--No suit or proceeding shall be 

maintained in any court for the recovery of any internal revenue tax alleged 

to have been erroneously or illegally assessed or collected, or of any 

penalty claimed to have been collected without authority, or of any sum 

alleged to have been excessive or in any manner wrongfully collected, until 

a claim for refund or credit has been duly filed with the Secretary, 

2

 The firm waiver rule also does not apply when a “a pro se litigant has not 

been informed of the time period for objecting and the consequences of failing to 

object.” Morales-Fernandez, 418 F.3d at 1119. But Lunnon received the required 

information in all the recommendations relevant to this appeal. 

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according to the provisions of law in that regard, and the regulations of the 

Secretary established in pursuance thereof. 

§ 7422(a) (emphasis added). Lunnon contends that § 7422(a)’s exhaustion 

requirement does not apply to a refund claim based on a § 6330 violation because 

there are no “provisions of law in that regard,” § 7422(a), that specifically apply to a 

§ 6330 refund claim. We may assume there are no such provisions, but Lunnon 

offers no authority supporting this novel argument. To the contrary, § 7422(a)’s 

exhaustion requirement is broadly stated, and nothing in § 7422(a) suggests an 

administrative refund claim is required only if there are “provisions of law” 

controlling the manner in which the specific type of refund claim at issue must be 

filed. Thus, it is not clear or obvious that the district court erred, so Lunnon has not 

shown plain error. See Morales-Fernandez, 418 F.3d at 1124 (“[A]n error is ‘plain’ 

if it is clear or obvious at the time of the appeal.”). We therefore affirm dismissal of 

the § 6330 claim. 

2. Section 6213(a) claim 

In the district court, the government did not squarely argue that sovereign 

immunity applies because Lunnon failed to exhaust his § 6213(a) claim as required 

by § 7422. And it does not do so on appeal. But no matter. We can “raise the 

sovereign immunity issue sua sponte.” Clymore v. United States, 415 F.3d 1113, 

1118 n.6 (10th Cir. 2005). 

We may assume, without deciding, that if no notice of deficiency is sent to the 

taxpayer, § 6213(a) waives the United States’ sovereign immunity from a 

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“proceeding in the proper court” seeking a “refund . . . of any amount collected,” 

§ 6213(a), and also vests the “proper court” with jurisdiction over a refund action, id. 

The question then is whether § 7422’s exhaustion requirement acts as a limitation on 

the § 6213(a) waiver of sovereign immunity. We conclude that it does. In Wyodak 

Resources Development Corp. v. United States, 637 F.3d 1127, 1135 (10th Cir. 

2011), this court explained that § 7422’s exhaustion requirement and § 1346’s grant 

of jurisdiction over civil actions seeking to recover taxes erroneously or illegally 

assessed or collected “work together to require that all tax refund claimants seeking 

relief in district court must first exhaust their administrative remedies with the 

Secretary of the Treasury,” and to hold otherwise “would create a class of claims 

over which district courts possessed jurisdiction regardless of exhaustion.” Given the 

breadth of § 7422, this logic is equally applicable to § 6213(a) refund claims. 

Because Lunnon did not file an administrative claim for a refund or credit, sovereign 

immunity deprived the district court of jurisdiction. We therefore vacate the grant of 

summary judgment to the United States on the § 6213(a) claim and remand to the 

district court with instructions to dismiss the § 6213(a) claim without prejudice for 

lack of jurisdiction based on sovereign immunity. 

C. Claim four: RICO

 In claim four, Lunnon asserted a RICO scheme between TUPSS and Lyons, 

named in his individual capacity, to fraudulently divert to the IRS money TUPSS 

owed Kendrick. The district court dismissed the RICO claim for several alternative 

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reasons. We first discuss dismissal of the claim as to Lyons before turning to 

dismissal of the claim against TUPSS. 

1. RICO claim against Lyons 

Lyons and the United States moved jointly to dismiss the RICO claim (“Joint 

Motion”) under Rule 12(b) on multiple grounds. Lunnon responded and also moved 

to strike the Joint Motion. The magistrate judge recommended granting the motion to 

dismiss for several reasons, including sovereign immunity, and denying the motion to 

strike. The district court adopted the entirety of the recommendation. Exercising 

de novo review, see Tompkins, 16 F.4th at 741, we affirm based on sovereign 

immunity. 

In his recommendation, the magistrate judge concluded that because all of 

Lyons’s actions were taken in his official capacity as an IRS agent, the United States 

was the real party in interest and therefore the only proper government defendant on 

the RICO claim. The magistrate judge then determined that sovereign immunity 

barred the RICO claim against the United States. 

On appeal, Lunnon argues that under Hafer v. Melo, 502 U.S. 21 (1991), it is 

not the capacity in which the injury is inflicted that controls the nature of the claim 

but the capacity in which a defendant is named, and here, Lunnon named Lyons in 

his individual capacity. Thus, he concludes, the district court erred in treating the 

RICO claim against Lyons as an official capacity claim, and therefore all the district 

court’s other reasons for dismissing the claim and denying his motion to strike 

necessarily fail. He also cites two statements in Stafford v. Briggs, 444 U.S. 527 

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(1980). The first is that “[a] suit for money damages which must be paid out of the 

pocket of the private individual who happens to be—or formerly was—employed by 

the Federal Government plainly is not one . . . against the United States.” Id. at 542 

(internal quotation marks omitted). The second is that “[i]n deciding whether an 

action is in reality one against the Government, the identity of the named parties 

defendant is not controlling; the dispositive inquiry is ‘who will pay the judgment?’” 

Id. at 542 n.10. Lunnon argues that because he sought damages against Lyons 

individually, his RICO claim was not against the United States. 

Lunnon’s Hafer argument fails because Hafer involved § 1983 claims against 

a state official, and in Weaver v. United States, 98 F.3d 518 (10th Cir. 1996), we 

rejected the same argument Lunnon advances here: “‘When an action is one against 

named individual defendants, but the acts complained of consist of actions taken by 

defendants in their official capacity as agents of the United States, the action is in 

fact one against the United States.’” Id. at 520 (emphasis and internal quotation 

marks omitted). Weaver further held that RICO did not expressly waive the United 

States’ sovereign immunity. Id. at 520 & n.2. Lunnon’s reliance on Stafford’s “who 

will pay the judgment” rule is misplaced because he alleged TUPSS sent the money 

“to the IRS,” R., Vol. 1 at 181. Thus, if Lunnon was successful on his RICO claim, 

we are confident the United States would pay the judgment, not Lyons. For these 

reasons, we agree with the district court’s construction of the RICO claim as one 

against the United States, not Lyons in his individual capacity, and therefore 

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sovereign immunity applies. Consequently, we affirm the dismissal of the RICO 

claim against United States and the denial of Lunnon’s motion to strike. 

2. RICO claim against TUPSS

In his recommendation on the Joint Motion, the magistrate judge determined 

that Kendrick was the proper plaintiff on the RICO claim based on allegations in the 

amended complaint that the RICO scheme fraudulently obtained Kendrick’s property, 

that Kendrick had been damaged, and that Kendrick sought treble damages. The 

magistrate then recommended the RICO claim be dismissed because Kendrick was 

not a party to the action and Lunnon could not represent Kendrick because he is not a 

licensed attorney. We conclude that, based on this rationale, on which the district 

court relied when adopting the recommendation, the order granting the Joint Motion 

also disposed of the RICO claim against TUPSS.3

So construing the district court’s order granting the Joint Motion, we turn to 

the applicable portion of Lunnon’s appellate argument, which is that the district court 

erred in determining Kendrick had rights separate from Lunnon given the IRS’s 

finding that Kendrick was Lunnon’s alter ego. Lunnon did not challenge this 

determination in his objections to the recommendation on the Joint Motion. 

3

 Lunnon contends the district court did not dispose of the RICO claim against 

TUPSS until a later order granting TUPSS’s motion to dismiss. We reject this 

argument because the later order limited its analysis to the sixth claim, which 

asserted breach of contract against TUPSS, and in its final judgment the district court 

recounted that its order granting the Joint Motion “dismissed Count IV (RICO 

Violations by Defendants T.W. Lyons and TUPSS),” R., Vol. 2 at 817 n.1 (emphasis 

added). 

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Accordingly, our firm waiver rule bars consideration of his appellate argument unless 

he can show the district court plainly erred. See Morales-Fernandez, 418 F.3d 

at 1119–20. We conclude Lunnon has not shown plain error. 

The IRS may satisfy a tax deficiency by imposing a lien on a delinquent 

taxpayer’s “‘property’” or “‘rights to property.’” Drye v. United States, 528 U.S. 49, 

55 (1999) (quoting 26 U.S.C. § 6321). Such property includes “property held by a 

third party if it is determined that the third party is holding the property as a nominee 

or alter ego of the delinquent taxpayer.” Spotts v. United States, 429 F.3d 248, 251 

(6th Cir. 2005). “In the case of a nominee lien, the IRS proceeds against an alter ego 

or nominee of a delinquent taxpayer for the purposes of satisfying the taxpayer’s 

obligations.” Macklin v. United States, 300 F.3d 814, 818 n.2 (7th Cir. 2002) 

(emphasis added) (internal quotation marks omitted). 

Against this tax-specific alter ego rubric stands 28 U.S.C. § 1654 and judicial 

decisions applying § 1654 to representation of business entities in federal court. 

Section 1654 provides that “[i]n all courts of the United States the parties may plead 

and conduct their own cases personally or by counsel as, by the rules of such courts, 

respectively, are permitted to manage and conduct causes therein.” Thus, it has been 

the long-standing rule “that a corporation may appear in the federal courts only 

through licensed counsel,” and that “the rationale for that rule applies equally to all 

artificial entities.” Rowland v. Cal. Men’s Colony, 506 U.S. 194, 202 (1993). See 

also Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 556 (10th Cir. 2001) (“As a 

general matter, a corporation or other business entity can only appear in court 

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through an attorney and not through a non-attorney corporate officer appearing pro 

se.”); D.N.M.LR-Civ 83.7 (“A corporation, partnership or business entity other than a 

natural person must be represented by an attorney authorized to practice before this 

Court.”). 

Lunnon points to no authority for his proposition that when the IRS determines 

an LLC is an individual taxpayer’s alter ego for lien purposes, the LLC should be 

disregarded for all purposes, including when determining whether an LLC’s sole 

member has standing to assert a RICO claim alleging harm to the LLC or when 

applying federal law requiring business entities to appear in court only through 

licensed counsel. Lunnon relies on Walker v. THI of New Mexico at Hobbs Center 

for its acknowledgment that the effect of an alter-ego determination can be “to 

disregard the separate nature of a corporation” because “[l]iability based on an alter 

ego theory lies where the shareholders have so manipulated the corporation to further 

their own individual interests that the identity of the corporation has merged into its 

shareholders.” 801 F. Supp. 2d 1128, 1150 (D.N.M. 2011) (internal quotation marks 

omitted). But Lunnon overlooks Walker’s recognition that “[a]lter ego . . . is 

primarily used to establish liability,” and that “liability and [personal] jurisdiction are 

different inquiries that focus on different principles and frequently on different 

bodies of law.” Id. Similarly, liability is a distinct inquiry from either standing or 

the entity-representation rule, which also focus on different legal principles and 

bodies of law. Thus, Walker does not show plain error in the district court’s 

disposition of the RICO claim against TUPSS. 

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Nor does the other case Lunnon relies on, Wellston, Oklahoma, Natural Gas 

Authority Bondholders v. Nesbitt (In re Eufaula Enterprises, Inc.), 565 F.2d 1157 

(10th Cir. 1977). That case concerned ownership of assets in a bankruptcy 

proceeding, not whether a member of an LLC deemed to be his alter ego has standing 

to assert the LLC’s claim or may represent the LLC in federal court. See id. at 1161. 

Accordingly, Lunnon has not shown plain error in the district court’s determination 

that Kendrick was the proper plaintiff on the RICO claim against TUPSS and that 

Lunnon, who is not a licensed attorney, could not represent Kendrick on the RICO 

claim. 

Finally, we disagree with Lunnon that it was inconsistent for the district court 

to dismiss his claim for a declaratory judgment that Kendrick was not his alter ego 

and then treat Kendrick as a separate entity for purposes of this action. As discussed 

above, the DJA required the court to dismiss his declaratory judgment claim, and 

Lunnon has not shown the IRS’s alter-ego finding extends beyond the IRS’s efforts 

to collect delinquent taxes. 

D. Counterclaims

In its counterclaims, the United States sought to reduce to judgment unpaid 

federal income and employment taxes, with penalties and interest, totaling just over 

$1.2 million that Lunnon owed for tax years 2006 through 2018. Lunnon filed an 

answer and then moved to dismiss the counterclaims pursuant to Fed. R. Civ. P. 

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12(h)(3)4

 for lack of jurisdiction or, alternatively, for judgment on the pleadings 

pursuant to Rule 12(c). He argued that the United States failed to meet certain 

statutory requirements. The United States moved for summary judgment on its 

counterclaims. The magistrate judge recommended denying Lunnon’s motion and 

granting the government’s motion. Lunnon filed objections. The district court 

overruled the objections in an order adopting the recommendation, denying Lunnon’s 

motion, and granting summary judgment to the government on its counterclaims. 

On appeal, Lunnon contests the denial of both his Rule 12(h)(3) motion and 

his Rule 12(c) motion. However, Lunnon may not challenge on appeal the denial of 

his Rule 12(c) motion (the post-pleading equivalent of a Rule 12(b)(6) motion) 

because the district court granted summary judgment to the United States on its 

counterclaims (the equivalent of prevailing at trial on the merits). See ClearOne 

Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1172 (10th Cir. 2011) (explaining that 

when the plaintiff prevails at trial, the defendant may not “appeal from the pretrial 

denial of a Rule 12(b)(6) motion to dismiss”); Bennett v. Pippin, 74 F.3d 578, 585 

(5th Cir. 1996) (“When the plaintiff has prevailed after a full trial on the merits, a 

district court’s denial of a Rule 12(b)(6) dismissal becomes moot. The plaintiff has 

proved, not merely alleged, facts sufficient to support relief.”). We therefore do not 

consider Lunnon’s assertions that the district court erred in denying his Rule 12(c) 

4

 Rule 12(h)(3) provides: “If the court determines at any time that it lacks 

subject-matter jurisdiction, the court must dismiss the action.” 

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motion. But we will address his arguments concerning the denial of his 

Rule 12(h)(3) motion and the grant of summary judgment to the government. 

1. Denial of Lunnon’s Rule 12(h)(3) motion to dismiss counterclaims 

Lunnon argued the counterclaims should be dismissed for lack of jurisdiction 

based on 26 U.S.C. § 7401, which provides: “No civil action for the collection or 

recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless 

the Secretary authorizes or sanctions the proceedings and the Attorney General or his 

delegate directs that the action be commenced.” Lunnon asserted that because he 

denied the government’s allegation that the counterclaims were authorized under 

§ 7401, the government had the burden to produce evidence to prove that allegation. 

The government responded that Lunnon had not provided any supporting evidence, 

so his argument was a facial attack and failed because when faced with a facial 

attack, a court must presume jurisdictional allegations are true. In reply, Lunnon 

reiterated that his was a factual attack on the allegation that authorization existed. 

The magistrate judge treated Lunnon’s argument as a facial challenge to the 

district court’s jurisdiction because Lunnon had argued only that the United States’ 

mere allegation of § 7401 authorization was insufficient. The magistrate judge then 

rejected the argument based on the rule that when considering a facial attack, the 

court must accept the plaintiff’s allegations as true, see Pueblo of Jemez v. United 

States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015), and the government’s allegation 

was sufficient to show the authorizations § 7401 requires. However, because Lunnon 

also raised this issue in connection with the government’s motion for summary 

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judgment, the magistrate judge considered two declarations the United States 

attached to its reply in support of its motion for summary judgment, one from an 

attorney in the IRS’s Office of Chief Counsel and one from an attorney with the 

DOJ’s Tax Division, stating that the proper authorizations were given prior to filing 

of the counterclaims. And the magistrate judge recommended granting summary 

judgment to the United States on this issue because there was “no evidence from 

which a reasonable jury could find that the United States has not satisfied the specific 

authorization required to proceed with its civil tax enforcement action.” R., Vol. 2 

at 715. 

Lunnon objected, arguing again that he had advanced a factual attack on 

the § 7401 allegation and that reliance on the government’s declarations was 

improper because they were not presented until the government’s reply brief. He 

also complained that the government’s declarations were insufficient to show 

authorization was given because they lacked any supporting documentation and, at 

best, raised a disputed fact issue requiring a hearing or trial. He added that the 

magistrate judge failed to meaningfully consider a document he submitted with his 

response to the motion for summary judgment—an internal IRS memorandum from 

2015 that Lyons authored. In that memorandum, Lyons requested approval to pursue 

a civil injunction against Lunnon and Kendrick, and the document is accompanied by 

two forms titled “Civil Suit Recommendation” (“Form 4477s”). Aplt. Suppl. R., 

Vol. 2 at 6–25. Lunnon argued that the memorandum showed how authorization is 

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obtained, that it was the only document bearing on authorization, and that the fact it 

was unsigned showed no authorization was made. 

The district court overruled Lunnon’s objection and adopted the 

recommendation. The court concluded that the attack was a facial one and failed as 

such, but that it was proper to consider the government’s declarations because they 

were submitted in reply to an argument Lunnon raised in both his Rule 12(h)(3) 

motion and his response to the summary judgment motion. The district court adopted 

the magistrate judge’s recommendation that it grant summary judgment in favor of 

the government, finding that the internal memorandum and Form 4477s were 

irrelevant and that “the United States had provided the necessary proof of its 

authority in compliance with 26 U.S.C. § 7401.” R., Vol. 2 at 792. 

On appeal, Lunnon repeats the same arguments he made in the district court 

and tries to segregate the parties’ responses and replies to his motion to dismiss and 

to the government’s summary judgment motion, which were decided in the same 

recommendation and order. See Aplt. Reply Br. at 18 (arguing that the district court 

should have dismissed the counterclaims because “the government failed to produce 

even a shred of evidence of authorization within the dismissal motion proceeding” 

(emphasis added)). He also asserts that neither of the government’s declarants were 

disclosed as possible witnesses under Fed. R. Civ. P. 26(a) and he had an inadequate 

opportunity to address them. 

We may assume, without deciding, that § 7401 authorization is jurisdictional 

and that Lunnon’s attack was a factual one. But because Lunnon argued in his 

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Rule 12(h)(3) reply brief for consideration of documents he supplied in connection 

with opposing the motion for summary judgment, we reject his attempt to segregate 

materials submitted in the summary judgment briefing from materials submitted in 

the Rule 12(h)(3) briefing. So doing, we affirm the grant of summary judgment on 

the § 7401 issue because the government’s declarations demonstrate that it had the 

requisite authorization, and the internal memorandum and the Form 4477s do not call 

that authorization into question. As the district court observed, it appears the Form 

4477s (and, by extension, the memorandum they were attached to) concern some 

other potential civil action against Lunnon; the Form 4477s refer to a possible suit for 

a civil injunction, not for collection of unpaid taxes, which was the only relief the 

United States sought in its counterclaims. And there is nothing to explain whether 

the memorandum was ever submitted for approval, so the fact it or the attached forms 

are unsigned is not dispositive of whether § 7401 authorization was given. Finally, 

we agree with the government that Lunnon waived any Rule 26(a) challenge to use of 

the government’s declarations because he never presented the argument in the district 

court. 

2. Lunnon’s new § 6213(a) jurisdictional argument

Lunnon mounts a new, nominally jurisdictional argument on appeal based on 

§ 6213(a)’s requirement that a notice of deficiency must be sent to a taxpayer before 

 

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commencement of a judicial proceeding to collect an assessed tax.5

 He notes that 

“[a]t least one court,” United States v. Ball, 326 F.2d 898, 902–03 (4th Cir. 1964), 

“has held [§ 6213(a)’s notice requirement] to be jurisdictional.” Aplt. Opening Br. 

at 35. He concludes that because the United States never pled in its counterclaims 

that notices of deficiency were sent for any of the tax years at issue, the 

counterclaims were jurisdictionally barred. 

We may assume, without deciding, that § 6213(a)’s notice requirement is 

jurisdictional. Accordingly, Lunnon’s failure to properly present this argument to the 

district court is no bar to our review.6

 See Tompkins, 16 F.4th at 735 n.1 (discussing 

“our duty to consider unargued obstacles to subject matter jurisdiction” (brackets and 

emphasis omitted)). But Lunnon points to no authority suggesting that to invoke a 

district court’s jurisdiction, the government must plead compliance with § 6213(a). 

Further, as a general rule, public officers are entitled to “the presumption of official 

regularity,” which is that “‘in the absence of clear evidence to the contrary, courts 

5

 In relevant part, § 6213(a) provides that 

no assessment of a deficiency in respect of any tax imposed by subtitle A 

[income taxes], or B [estate and gift taxes], chapter 41, 42, 43, or 44 

[miscellaneous excise taxes under subtitle D] and no levy or proceeding in 

court for its collection shall be made, begun, or prosecuted until such notice 

[of deficiency described in 26 U.S.C. § 6212] has been mailed to the 

taxpayer. 

6

 The district court declined to address a similar argument (that § 6213(a) 

presumptively barred the counterclaims) because Lunnon did not sufficiently raise it 

until his objections to the Rule 12(h)(3) portion of the recommendation. 

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presume that [public officers] have properly discharged their official duties.’” 

United States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976) (quoting United States v. 

Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)). Applying the presumption here, 

Lunnon has provided no “clear evidence” that the notices of deficiency were not sent, 

which might call jurisdiction into question. He has only an assertion that the failure 

to plead that they were sent deprived the district court of jurisdiction. We therefore 

reject his argument. 

3. Grant of summary judgment on counterclaims

Lunnon raises three arguments regarding the grant of summary judgment to the 

United States on its counterclaims. We address them in order. 

a. Constructive amendment 

In district court, Lunnon argued the summary judgment motion was an 

improper constructive amendment of the counterclaims because the counterclaim 

alleged only that “assessments [were] made (without any explanation for the 

amounts)” and “demand [was] being made for payment,” Aplt. Suppl. R., Vol. 1 

at 389, but the summary judgment motion “present[ed] issues that go far beyond 

those presented in the counterclaim,” id. at 390. In his recommendation, the 

magistrate judge rejected this argument. He explained that in the counterclaims, the 

United States pled that Lunnon had been assessed income taxes, penalties, interest, 

and statutory additions for tax years 2006 through 2018 and trust fund recovery 

penalties for Kendrick’s unpaid employment taxes for 2010. And in its summary 

judgment motion, the United States did “nothing more than support its factual 

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position as to these allegations as provided for in Rule 56.” R., Vol. 2 at 716. Over 

Lunnon’s objections, the district court agreed with the magistrate judge. 

On appeal, Lunnon reiterates his position, but the only fault he attributes to the 

district court is that the court cited “no authority.” See Aplt. Opening Br. at 42–43. 

His position is meritless because the counterclaims set forth “a short and plain 

statement of the claim[s] showing that the pleader is entitled to relief,” 

Fed. R. Civ. P. 8(a)(2), and the summary judgment motion merely provided the 

necessary support. We therefore reject Lunnon’s argument for substantially the same 

reasons the magistrate judge and district court provided. See R., Vol. 2 at 715–17, 

800–01. 

b. Compliance with statutory conditions precedent

Lunnon argues the district court erred in rejecting his arguments that the 

government’s motion for summary judgment on the counterclaims failed to show 

(1) all the necessary elements for imposition of the § 6672 penalties, including 

26 U.S.C. § 6751(b)’s approval requirement; and (2) any evidence supporting the 

income tax penalties, as required by 26 U.S.C. § 7491(c).7

 He raised these arguments 

7

 Section 6672(a) provides: 

Any person required to collect, truthfully account for, and pay over any tax 

imposed by this title who willfully fails to collect such tax, or truthfully 

account for and pay over such tax, or willfully attempts in any manner to 

evade or defeat any such tax or the payment thereof, shall, in addition to 

other penalties provided by law, be liable to a penalty equal to the total 

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as pleading deficiencies in his Rule 12(c) motion, but he incorporated his Rule 12(c) 

motion into his opposition to the motion for summary judgment and, rather 

succinctly, advanced these same arguments. 

The magistrate judge addressed and rejected these arguments as they related to 

both Lunnon’s Rule 12(c) motion and the government’s summary judgment motion. 

See R., Vol. 2 at 698–701 (Rule 12(c) motion); id. at 709, 718–20 (summary 

judgment motion). But in his objections to the recommendation, Lunnon raised these 

issues only as relevant to his Rule 12(c) motion. See id. at 738–39. Perhaps not 

unsurprisingly then, the district court considered these objections only in connection 

with adopting the magistrate judge’s recommendation that Lunnon’s motion to 

dismiss be denied. See id. at 793–94, 799. Thus, the firm waiver rule applies, and 

the interests of justice do not require overlooking the waiver because the magistrate 

judge’s analysis is sound. 

amount of the tax evaded, or not collected, or not accounted for and paid 

over. 

Section 6751(b)(1) provides: “No penalty under this title shall be assessed 

unless the initial determination of such assessment is personally approved (in 

writing) by the immediate supervisor of the individual making such determination 

or such higher level official as the Secretary may designate.” 

Section 7491(c) provides: “Notwithstanding any other provision of this 

title, the Secretary shall have the burden of production in any court proceeding 

with respect to the liability of any individual for any penalty, addition to tax, or 

additional amount imposed by this title.” 

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c. Bankruptcy discharge

Lunnon argues the district court ignored that the penalty assessments for tax 

years 2006–09 occurred in 2014, more than three years before Lunnon filed for 

bankruptcy, so they were considered discharged under Wilson v. United States 

(In re Wilson), 407 B.R. 405, 410 (B.A.P. 10th Cir. 2009). The magistrate judge 

rejected this argument, and Lunnon did not challenge the ruling in his objections. 

Thus, the firm waiver rule applies, and the interests of justice do not require 

overlooking the waiver because this argument is wholly without merit for the reasons 

the magistrate judge provided. See R., Vol. 2 at 722–23 (recommendation discussing 

record evidence showing abatements of penalties for the 2006 through 2009 tax years 

resulting from the discharge). Therefore, there is no merit to Lunnon’s contention 

that the United States’ “abatement claim is simply unsupported by the record,” Aplt. 

Reply Br. at 23. Moreover, his attempt to show no abatement occurred because the 

counterclaim alleged a lesser amount of income tax and penalties owed than did the 

summary judgment motion on the counterclaims, see id., is insufficiently developed 

to merit this court’s review. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 

2020) (explaining that “arguments that are inadequately presented in an opening 

brief” are waived (internal quotation marks omitted)). 

III. Conclusion

 We vacate the grant of summary judgment to the United States on the 

§ 6213(a) claim and remand to the district court with instructions to dismiss the 

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§ 6213(a) claim without prejudice for lack of jurisdiction based on sovereign 

immunity. We otherwise affirm the district court’s judgment. 

Entered for the Court 

Timothy M. Tymkovich 

Circuit Judge 

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