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 cl aims against defendants arising from attempts by the Internal Revenue Service (“IRS”) to collect taxes Lunnon allegedly

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 12 owed for certain tax years. The United States filed counterclaims seeking to reduce to judgment Lunnon’s tax liabilities for othe r 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. Appear ing pro se, Lunnon appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s ru lings but with one exception—we vacate the gran t of summary judgment to the United States on Lunnon’s 28 U.S.C. § 6213(a) cl aim and remand to the district court with instructions to dismiss the § 6213(a) claim without pr ejudice for lack of jurisdiction based on sovereign immunity. I. Factual and procedural background LG Kendrick, LLC (“Kendrick”), wa s formed in 2009, and Lunnon is Kendrick’s sole member. Kendrick has a fr anchise agreement w ith The UPS Store, Inc. (“TUPSS”), and operates a UPS Stor e 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 year s 1998, 1999, and 200 5, Revenue Officer T.W. Lyons issued a Notice of Federal Tax Lien to Kendric k as Lunnon’s alter ego. Lyons also sent a Notice of Levy on Wage s, 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 y ears 2006 through 2009. From Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 23 2011 through February 2018, TUPSS continuously sent the IRS money (more than $65,000) TUPSS owed Kendrick. In 2016, Lunnon filed the pro se acti on underlying this a ppeal against the United States, Lyons, and TUPSS. Lunnon, w ho is not an attorney, initially listed himself and Kendrick as plaint iffs. However, in the op erative amended complaint, and after the court informed him that he could not represent Kendrick, he listed only himself as plaintiff but alle ged Kendrick had assi gned 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 Stat es: (1) declaratory judgment regarding the alter-ego determination; (2) tax re fund; and (3) damages for unauthorized collection. The fourth clai m asserted that Lyons and TUPSS violated the Racketeer Influenced and Corrupt Orga nizations Act, 18 U.S.C. §§ 1961–1968 (“RICO”). And the “sixth” claim (there was no fifth clai m) was for breach of contract against TUPSS. The United States filed counterclai ms 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 with holding taxes) for all four quarters of
2010. In orders adopting a series of magistra te judge’s recommenda tions, the district court dismissed some claims, granted summary judgment to defendants on the remaining claims, and gran ted 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. Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 34 counterclaims. Lunnon now challenges the district court’s ru lings 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 dismis s the counterclaims.
II. Discussion A. Claim one: Declaratory judgment In claim one, Lunnon sought a declarat ory judgment against the United States that Kendrick was not Lunnon’s alter ego. The district c ourt 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 d eclaratory judgments “with re spect 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 (1 0th 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 d eclaratory judgments “with respect to Federal taxes” extends no further than the Anti-Injunction Act’s prohibition on suits brought “for the purpos e of restraining the assessment or collection of any tax,” 26 U.S.C. § 7421( a) (“AIA”). Alt hough Lunnon correctly

notes Green ’s statement that the DJA and AI A 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 co llection of taxes. Instead,
Green discussed the relationship between the AI A and the DJA only to point out that Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 45 the plaintiff could not “make an end-r un around the AIA” by relying on the DJA because they both barred suit s 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 applicab le 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 wa s such an activity, so it falls within the meaning of “with respect to Federal taxe s” 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 und er 26 U.S.C. §§ 6213(a) and 6330 In claim two, Lunnon sought an “automa tic 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 issuan ce 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 Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 56 mailed to the taxpayer, nor until the ex piration of such 90- day . . . period, . . . nor, if a petition has been filed w ith the Tax Court, until the decision of the Tax Court has become final. No twithstanding the provisions of section 7421(a) [the AIA], the maki ng 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 cour t of any amount collected within the period during which the Secretary is prohibited from collecting by levy or through a proceeding in court under th e provisions of this subsection. The relevant part of § 6330 provides: “No levy may be made on any property or right to property of a ny person unless the Secretary has notified such person in writing of their right to a h earing under this section befo re 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. Th e district court granted that motion. In his recommendation, the magistrate j udge determined that § 6213’s refund mechanism did not waive the United States’ sovereign immunity for a § 6330 claim. The magistrate judge also rejected Lunn on’s argument that his § 6330 claim could proceed under 28 U.S.C. § 1346(a)(1), wh ich grants district courts original jurisdiction over civil actions to recover ta xes erroneously or illegally assessed or collected. The magistrate j udge concluded that for § 13 46(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. Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 67 The United States and Lunnon filed cr oss-motions for summary judgment on the § 6213(a) claim. The government adva nced multiple theories in support of its motion, including that Lunnon could not pr oceed 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 a nd granted the United States’ motion based solely on the last of the government’s th eories, finding that the government had provided sufficient admissible and unrebu tted evidence of the proper mailing of notices of deficiency for the tax years at issue. On appeal, the United States argues th at because Kendrick is the proper plaintiff for claim two, Lunn on lacks Article I II and prudential standing to assert Kendrick’s claims. We need not resolve this issu e because we can af firm the district court’s dismissal of claim two based on a different jurisdicti onal ground—sovereign immunity. See Sinochem Int’l Co. v. Ma laysia Int’l Shipping Corp. , 549 U.S. 422, 431 (2007) (explaining that “a federal c ourt has leeway to choose among threshold grounds for denying audience to a case on the merits” (inter nal quotation marks omitted)); FDIC v. Meyer , 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in nature.”). We first address the § 6330 cl aim, 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 re view de novo the district Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 78 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 § 63 30 claim, Lunnon’s sole argument was that the magistrate judge s hould not have considered the government’s § 7422(a) argument because it was raised fo r the first time in the government’s reply brief. Because Lunnon did no t object to the magistrate judge’s sovereign immunity analysis, our firm waiver rule precludes ap pellate review unless Lunnon satisfies that rule’s interests-o f-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 simi lar to reviewing for plain error.” Id. at 1120. “Plain error occurs when th ere is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judici al proceedings.” Id. at 1122–23 (inter nal 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 fo r 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 collec ted without authority, or of any sum alleged to have been excessive or in any manner wrongf ully collected, until a claim for refund or credit has been duly filed with the Secretary,

2 The firm waiver rule al so does not apply when a “a pro se litigant has not been informed of the time period for objecting and the c onsequences of failing to object.” Morales-Fernandez , 418 F.3d at 1119. But Lunnon received the required information in all the recommendati ons relevant to this appeal. Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 89 according to the provisions of law in that regard , and the regulations of the Secretary established in pursuance thereof. § 7422(a) (emphasis added). Lunnon c ontends that § 74 22(a)’s exhaustion requirement does not apply to a refund cl aim based on a § 6330 violation because there are no “provisions of law in that rega rd,” § 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 ar gument. 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 c ourt 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 th e 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 ar gue that sovereign immunity applies because L unnon 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 Unite d States’ sovereign immunity from a Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 910 “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 exha ustion requirement ac ts as a limitation on the § 6213(a) waiver of sovereign immuni ty. 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 exhaus tion requirement and § 1346’s grant of jurisdiction over civil actions seeking to recover taxes errone ously or illegally assessed or collected “work together to re quire that all tax refund claimants seeking relief in district court mu st first exhaust their admini strative remedies with the Secretary of the Treasury,” and to hold otherwise “would create a class of claims over which district courts po ssessed jurisdiction regardless of exhaustion.” Given the breadth of § 7422, this logi c 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 instruc tions to dismiss the § 6213(a) claim without prejudice for lack of jurisdiction base d on sovereign immunity.
C. Claim four: RICO In claim four, Lunnon asserted a RI CO scheme between TUPSS and Lyons, named in his individual capacity, to fr audulently divert to the IRS money TUPSS owed Kendrick. The district court dismi ssed the RICO claim fo r several alternative Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1011 reasons. We first di scuss dismissal of th e 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 groun ds. Lunnon respon ded and also moved to strike the Joint Motion. The magistra te judge recommended gr anting the motion to dismiss for several reasons, including sovereign immunity, and denying the motion to strike. The district court adopted the en tirety of the recommendation. Exercising de novo review, see Tompkins , 16 F.4th at 741, we a ffirm based on sovereign immunity. In his recommendation, the magistrate judge concluded that because all of Lyons’s actions were taken in his official ca pacity as an IRS agen t, the United States was the real party in interest and theref ore the only proper government defendant on the RICO claim. The magistrate judge th en determined that sovereign immunity barred the RICO claim ag ainst 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 in jury is inflicted that contro ls 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, a nd 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 Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1112 (1980). The first is that “[ a] suit for money damages whic h must be paid out of the pocket of the private indi vidual who happens to be—o r formerly was—employed by the Federal Government plainly is not one . . . against the United States.” Id. at 542 (internal quotation marks omitted). The se cond is that “[i]n deciding whether an action is in reality one against the Gove rnment, the identity of the named parties defendant is not controlling; the dispositive inquiry is ‘w ho will pay the judgment?’” Id. at 542 n.10. Lunnon argues that beca use he sought dama ges against Lyons individually, his RICO claim was not against the United States.
Lunnon’s Hafer argument fails because Hafer involved § 1983 cl aims 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: “‘Wh en an action is one against named individual defendants, but the acts co mplained of consist of actions taken by defendants in their official capacity as agen ts of the United Stat es, 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 al leged 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 Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1213 sovereign immunity applies. Consequently, we affirm the dismissal of the RICO claim against United States and the denial of Lunn on’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 th e 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 treb le damages. The magistrate then recommended the RICO cl aim be dismissed because Kendrick was not a party to the action and Lunnon could not represent Ke ndrick because he is not a licensed attorney. We conclude that, base d on this rationale, on which the district court relied when adopting the recommenda tion, 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 ar gument, 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 th e recommendation on the Joint Motion.

3 Lunnon contends the district court di d 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 or der limited its analysis to the sixth claim, which asserted breach of contract against TUPSS, a nd in its final judgment the district court recounted that its order granting the Joint Motion “dismissed Count IV (RICO Violations by Defend ants T.W. Lyons and TUPSS ),” R., Vol. 2 at 817 n.1 (emphasis added). Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1314 Accordingly, our firm waiver rule bars c onsideration of his appellate argument unless he can show the district court plainly erred. See Morales-Fernandez , 418 F.3d at 1119–20. We conclude Lunn on 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). Su ch property includes “property held by a third party if it is determin ed that the third party is ho lding 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 sati sfying the taxpayer’s obligations .” Macklin v. United States , 300 F.3d 814, 818 n. 2 (7th Cir. 2002) (emphasis added) (interna l quotation marks omitted). Against this tax-specific al ter ego rubric stands 28 U. S.C. § 1654 and judicial decisions applying § 1654 to representation of business en tities 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 rule s of such courts, respectively, are permitted to manage and c onduct causes therein.” Thus, it has been the long-standing rule “that a corporation may appear in the federal courts only through licensed counsel,” and th at “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 corporati on or other business entity can only appear in court Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1415 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 atto rney authorized to practice before this Court.”). Lunnon points to no authority for his propos ition that when the IRS determines an LLC is an individual taxpayer’s alte r 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 cl aim alleging harm to the LLC or when applying federal law requiri ng business entities to app ear in court only through licensed counsel. Lunnon relies on Walker v. THI of New M exico at Hobbs Center for its acknowledgment that the effect of an alter-ego determination can be “to disregard the separate nature of a corporati on” because “[l]iability based on an alter ego theory lies where th e shareholders have so manipulat ed the corporation to further their own individual interests that the identity of the cor poration 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 li ability,” and that “liability a nd [personal] jurisdiction are different inquiries that focus on different principles and fre quently on different bodies of law.” Id. Similarly, liability is a distin ct inquiry from either standing or the entity-representation rule, which also focus on differe nt 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. Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1516 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 ca se concerned ownership of assets in a bankruptcy proceeding, not whether a member of an LL C deemed to be his alter ego has standing to assert the LLC’s claim or may re present the LLC in federal court. See id. at 1161. Accordingly, Lunnon has not shown plain e rror 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 inconsiste nt for the district court to dismiss his claim for a d eclaratory judgment that Ke ndrick was not his alter ego and then treat Kendrick as a se parate entity for purposes of this action. As discussed above, the DJA required the court to dismis s 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, th e 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 y ears 2006 through 2018. Lunnon filed an answer and then moved to dismiss the count erclaims pursuant to Fed. R. Civ. P. Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1617 12(h)(3) 4 for lack of jurisdiction or, alternatively, for ju dgment on the pleadings pursuant to Rule 12(c). He argued that the United States failed to meet certain statutory requirements. The United Stat es 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 adop ting 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 ma y 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 equiva lent of prevailing at trial on the merits). See ClearOne Commc’ns, Inc. v. Biamp Sys. , 653 F.3d 1163, 1172 (10th Ci r. 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 pr evailed after a full trial on the merits, a district court’s denial of a Rule 12(b)(6) dismissal beco mes moot. The plaintiff has proved, not merely alleged, fa cts sufficient to support reli ef.”). We therefore do not consider Lunnon’s assertions that the district court erre d 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.” Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1718 motion. But we will address his ar guments 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 act ion 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 th at Lunnon had not provided any supporting evidence, so his argument was a facial attack and fa iled because when f aced with a facial attack, a court must presume jurisdictional allegations are true. In reply, Lunnon reiterated that his was a f actual attack on the allegation that authorization existed. The magistrate judge treated Lunnon’s ar gument as a facial challenge to the district court’s jurisdiction because Lunnon had argued only that the United States’ mere allegation of § 7401 aut horization was insufficient. The magistrate judge then rejected the argument based on the rule that when considering a facial attack, the court must accept the plaintif f’s allegations as true, see Pueblo of Jemez v. United
States , 790 F.3d 1143, 1148 n.4 (10t h Cir. 2015), and the government’s allegation was sufficient to show the authorizations § 7401 requires. Ho wever, because Lunnon also raised this issue in connection with the government’s motion for summary Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1819 judgment, the magistrate judge consider ed two declarations the United States attached to its reply in support of it s 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 th at the proper authorizations were given prior to filing of the counterclaims. And the magist rate judge recommended granting summary judgment to the United States on this is sue because there wa s “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 de clarations were in sufficient to show authorization was given because they lack ed 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 judg ment—an internal IRS memorandum from 2015 that Lyons authored. In that memora ndum, Lyons requested approval to pursue a civil injunction against Lunnon and Kendr ick, 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 Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 1920 obtained, that it was the only document beari ng on authorization, a nd that the fact it was unsigned showed no au thorization was made. The district court overruled Lunn on’s objection and adopted the recommendation. The court concluded that th e 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 reco mmendation that it grant summary judgment in favor of the government, finding that the intern al 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 replie s to his motion to dismiss and to the government’s summary judgment moti on, which were decided in the same recommendation and order. See Aplt. Reply Br. at 18 (argui ng that the district court should have dismissed the counterclaims b ecause “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 beca use Lunnon argued in his Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 2021 Rule 12(h)(3) reply brief for considerati on of documents he supplied in connection with opposing the motion for summary judgme nt, we reject his a ttempt to segregate materials submitted in the summary judgme nt 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 d eclarations 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 agai nst Lunnon; the Form 4477s re fer to a possible suit for a civil injunction, not for co llection 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 submitte d for approval, so the fact it or the attached forms are unsigned is not dispositive of whether § 7401 authorization wa s 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 th e argument in the district

court. 2. Lunnon’s new § 6213(a) jurisdictional argument Lunnon mounts a new, nominally juri sdictional argument on appeal based on § 6213(a)’s requirement that a notice of deficiency must be sent to a taxpayer before Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 2122 commencement of a judicial proceed ing 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 Unite d States never pled in its counterclaims that notices of deficiency were sent for any of the tax years at issue, the counterclaims were ju risdictionally barred. We may assume, without deciding, that § 6213(a)’s notice requirement is jurisdictional. Accordingly, Lunnon’s failur e 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 jurisd iction” (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, pub lic officers are enti tled 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 resp ect 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 sub title 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 addr ess a similar argument (that § 6213(a) presumptively barred the count erclaims) because Lunnon did not sufficiently raise it until his objections to the Rule 12( h)(3) portion of the recommendation. Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 2223 presume that [public officers] have properl y 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 th e notices of deficiency were not sent, which might call jurisdiction into question. He has only an asser tion 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 e xplanation for the amounts)” and “demand [was] being made fo r payment,” Aplt. Suppl. R., Vol. 1 at 389, but the summary judgment mo tion “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 th at in the counterclaims, the United States pled that Lunnon had been a ssessed income taxes, penalties, interest, and statutory additions fo r 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 Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 2324 position as to these allegations as provided fo r 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 count erclaims 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 summa ry judgment motion merely provided the necessary support. We ther efore reject Lunnon’s argumen t for substantially the same reasons the magistrate judge a nd district court provided. See R., Vol. 2 at 715–17,
800–01. b. Compliance with stat utory conditions precedent Lunnon argues the district court erred in rejecting his ar guments that the government’s motion for summary judgmen t on the counterclaims failed to show (1) all the necessary elem ents for imposition of the § 6672 penalties, including 26 U.S.C. § 6751(b)’s appr oval requirement; and (2) any evidence supporting the income tax penalties, as re quired by 26 U.S.C. § 7491(c). 7 He raised these arguments

7 Section 6672(a) provides: Any person required to collect, truthfu lly 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 lia ble to a penalty equal to the total Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 2425 as pleading deficiencies in his Rule 12(c) motion, but he incorporated his Rule 12(c) motion into his opposition to the moti on for summary judgment and, rather succinctly, advanced these same arguments. The magistrate judge addre ssed and rejected these argum ents as they related to both Lunnon’s Rule 12(c) motion and the go vernment’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, Lu nnon raised these issues only as relevant to his Rule 12(c) motion. See id. at 738–39. Perhaps not unsurprisingly then, the distri ct 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 overl ooking the waiver because the magistrate judge’s analysis is sound.

amount of the tax evaded, or not colle cted, 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 th e individual making such determination or such higher level official as the Secretary may designate.” Section 7491(c) provides: “Notwithst anding 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 pe nalty, addition to tax, or additional amount impo sed by this title.” Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 2526 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 Ci r. 2009). The magistrate judge rejected this argument, and Lunnon did no t challenge the ruling in his objections. Thus, the firm waiver rule applies, a nd the interests of justice do not require overlooking the waiver because this argument is wholly w ithout merit for the reasons the magistrate judge provided. See R., Vol. 2 at 722–23 (r ecommendation discussing record evidence showing abatements of pe nalties 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 “ar guments that are inadequate ly presented in an opening brief” are waived (interna l quotation marks omitted)).
III. Conclusion We vacate the grant of summary judgm ent to the United States on the § 6213(a) claim and remand to the district court with in structions to dismiss the Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 2627 § 6213(a) claim without prejudice for l ack of jurisdiction based on sovereign immunity. We otherwise affirm the district court’s judgment.

Entered for the Court
Timothy M. Tymkovich Circuit Judge Appellate Case: 21-2140 Document: 010110784562 Date Filed: 12/16/2022 Page: 27