UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

STANLEY L. WADE, Petitioner-Appellant,

v. REGIONAL DIRECTOR, INTERNAL REVENUE SERVICE

‒ OGDEN, Respondent-Appellee. No. 11-4184 (D.C. No. 1:08-CV-00148-CW) (D. Utah)

ORDER AND JUDGMENT *

Before TYMKOVICH and HOLLOWAY , Circuit Judges, and BRORBY , Senior Circuit Judge.
Stanley L. Wade appeals from the di strict court’s order granting summary judgment in favor of the Regional Director of the IRS on his petition filed under the Mandamus Act, 28 U.S.C. § 1361, on the basi s that the petition is barred by the Anti-Injunction Act, 26 U.S. C. § 7421(a). We have jurisdiction under 28 U.S.C. § 1291.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 5, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Mr. Wade, acting pro se, filed a mandamu s proceeding in the district court to challenge the IRS’s assessme nt of millions of dollars in additional tax liability following his criminal conviction on charges of tax evasion for ta x years 1997, 1998, and 1999, and his subs equent payment of the millions of dollars of estimated taxes outlined in the presentence re port prepared in advance of his June 2005 sentencing. He sought an order from the district cour t directing the IRS to withdraw tax liens filed against certain of his pr operties and to desist from fu rther tax collection efforts. Before filing an answer , the IRS moved to dismiss Mr. Wade’s mandamus petition under Fed. R. Civ. P. 12(b)(1), (5) and (6). See generally Aplt. App. at 12-21. The IRS argued that the district court lacked subject matter jurisdiction because the petition was barred by the doctr ine of sovereign immunity and, because Mr. Wade sought to restrain the assessment or collecti on of taxes, the petition was also barred by the Declaratory Judgme nt Act, 28 U.S.C. § 2201(a), and the Anti-Injunction Act, 26 U.S.C. § 7421(a). The IRS also argued that the petition should be dismisse d because Mr. Wade had failed to perfect service of process. Finally, the IRS argued that the petition fail ed to set forth a claim upon which relief could be granted. Mr. Wade argued in response that service had been perfected. Aplt. App. at 22. He further argued that the doctrine of sovere ign immunity did not apply. In addition, he argued that hi s petition was not barred by the Declaratory Judgment Act or the Anti-Injunction Act b ecause: (1) the IRS’ s collection efforts- 3 - exceeded the applicable statute of li mitations; (2) the IRS was estopped from assessing more taxes than he had already paid for the same tax years based on the outline in the presentence report in his cr iminal case; and (3) he was faced with irreparable harm arising from the tax liens on his properti es, so no adequate legal remedy was available. The magistrate judge recommended th at the IRS’s motion to dismiss be granted. Id. at 35. But based solely on the face of the petition and accepting all well-pleaded facts as true, th e district court disagreed a nd denied the IRS’s motion.
Id. at 92, 99. The court held that Mr. Wade ’s petition stated a claim to enjoin an illegal tax under the Mandamus Act, 28 U.S.C. § 1361. See Aplt. App. at 98-99. The court pointed out that Mr. Wa de alleged “that he filed in come tax returns for the tax years in question more than three years before the IRS a ttempted to assess additional tax,” so the IRS’s additional collection effo rts would be outside of the statute of limitations. Id. at 97. The court further noted th at Mr. Wade also alleged “that the IRS calculated the taxes he owed as part of his sentencing, that the court ordered him to file tax returns, that he did so and paid in full.” Id. 98. The court also held that sovereign immunity did not bar Mr. Wade’s claim for mandamus relief seeking to require a federal official to perform a legal duty, id. at 96, and that his claim also was not barred by the Declaratory Judgment Act, id. at 96-97. Finally, the court held that Mr. Wade’s allegations, taken as true at the dismissal stage, met a narrow exception to the Anti-Injunction Act’ s jurisdictional bar. See Aplt. App. at 93-95, 97-98. The- 4 - court denied the IRS’s motion for reconsider ation, stating that “the court went to great efforts in its previous order to e xplain that its analys is does not go beyond Mr. Wade’s allegations and that its ruli ng was based on those al legations alone.”
Id. at 102. The IRS then filed its an swer to Mr. Wade’s mandamu s petition, and discovery began. Mr. Wade filed a motion to compel, asserting that the IR S refused to comply with his discovery requests. Id. at 135. While that motion was being briefed, the IRS filed a motion for summary judgment, presen ting evidence that Mr. Wade owed more in taxes, fraud penalties, and interest for the relevant year s than he had paid based on the amounts listed in his presentence repor t, and arguing that his mandamus petition was barred by the Anti-Injunction Act. See id. at 140, 148-49, 237-321. While the motion for summary judgment was being br iefed, the magistrate judge denied Mr. Wade’s motion to compel discovery because his requests were untimely and some of them related to his wife, who was not a party to his mandamus action.
Id. at 345-48. Mr. Wade filed objections to the magistrate judge’s decision denying further discovery, id. at 353, which the district court summarily rejected, id. at 386. The magistrate judge then issued a report and reco mmendation that the IRS’s motion for summary judgment should be granted. Id. at 389. The magistrate judge explained that “[t]he Anti-In junction Act withdraws all c ourts’ jurisdiction over suits filed ‘for the purposes of restraining the as sessment or collection of any tax.’” Id. at 398 (quoting 26 U.S.C. § 7421(a)). The magistrate judge also thoroughly- 5 - explained why Mr. Wade’s mandamus cha llenge did not meet the narrow exception to the Anti-Injunction Act’s jurisdictiona l bar outlined by the Supreme Court in Enochs v. Williams Packing & Navigation Co. , 370 U.S. 1 (1962). Aplt. App. at 398-409. In particular, the magistrate judge explaine d that the presentence report in Mr. Wade’s criminal case included reasonable estimates of the taxes he owed to assist the trial court in fashioning an a ppropriate sentence, but the judgment in his criminal case neither imposed an order of re stitution nor determined the merits of his tax liability for the relevant years. Id. at 400-03. The magist rate judge also noted that the general three-year st atute of limitations is tolled indefinitely under 26 U.S.C. § 6501(c)(1) in cases involving false or fraudu lent returns, such as this one, and that due to Mr. Wade’s criminal conviction fo r tax evasion for tax years 1997, 1998, and 1999, he was prevented by 26 U.S.C. § 6663(b) from challenging fraud penalties assessed for those same tax years in this civil action. Aplt. App. at 404-06. The magistrate judge concluded that Mr. Wade had failed to show that he met either part of the two-part exception to the Anti-Inju nction Act’s jurisdictional bar that the Supreme Court established in Williams Packing . Aplt. App. at 406-07. Mr. Wade filed objections to the magistrate judge’s recommendation, id. at 413, and a reply to the IRS’s re sponse in opposition to his objections, id. at 429, but the district court deni ed Mr. Wade’s objections, id. at 434. The court adopted the magistrate judge’s recommenda tion, entered summary judgme nt in favor of the IRS,- 6 - and entered a judgment stating that Mr. Wa de’s cause of acti on was dismissed. Id. at 438. Mr. Wade appeals, appearing through counsel.
II. Issues on Appeal and Standards of Review Mr. Wade argues on appeal that the di strict court erred by granting summary judgment in favor of the IRS because: (1) the IRS is collaterally estopped from attempting to assess a nd collect more taxes; (2) the statute of limitations precludes the IRS from assessing or collecting more ta xes; and (3) his manda mus petition is not barred by the Anti-Injunction Act. He also argues (4) that he was wrongly precluded from pursuing discovery. “We review a district court’s grant of summary judgment de novo, applying the same legal standard as the district court.” Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 997 (10th Cir. 2011). “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “In applying this standard, we view the evid ence and the reasonable inferences to be drawn from the evidence in the light most favorable to the nonmoving party.” Id. “We review de novo both the district c ourt’s determination of subject-matter jurisdiction and its ruling on the applicab ility of a statute of limitations.” Rio Grande Silvery Minnow (Hybognathus amar us) v. Bureau of Reclamation , 599 F.3d 1165, 1175 (10th Cir. 2010). “Whether the . . . Anti-Injunction Act[] bar[s Mr. Wade’s] claim is a question of law that we review de novo.” Ambort v. United States ,- 7 - 392 F.3d 1138, 1140 (10th Cir. 2004). We review the di strict court’s discovery ruling for an abuse of discretion. Breakthrough Mgmt. Grp., In c. v. Chukchansi Gold
Casino & Resort , 629 F.3d 1173, 1188-89 (10th Cir. 2010); cert. dism’d , 132 S. Ct. 64 (2011).

III. Discussion Mr. Wade argues that he meets the Williams Packing exception to the Anti-Injunction Act’s jurisdictional bar. We disagree and affirm the analysis set forth by the magistrate judge and a dopted by the district court. The Supreme Court has repeat edly reaffirmed that the Williams Packing exception allows the IRS’s atte mpted tax collection to be enjoined only where “it is clear that under no circumstances could the Government ultim ately prevail, . . . [and] equity jurisdiction ot herwise exists.” United States v. Clin twood Elkhorn Min. Co. , 553 U.S. 1, 12-13 (2008) (emphasis adde d) (internal quotation marks omitted); see also Wyo. Trucking Ass’n, Inc. v. Bentsen , 82 F.3d 930, 933 (10th Cir. 1996) (citing Alexander v. Ams. United Inc. , 416 U.S. 752, 758 (1974), for the same formulation of the Williams Packing exception). Mr. Wade’s allegations that he had paid all the taxes he owed were sufficient to withstand the IRS’s motion to dismiss. But his allegations, even th ough they may be verified, see Aplt. App. at 366, are not sufficient to withstand the government ’s motion for summary judgment. When a defendant files a motion to dism iss, the court accep ts the plaintiff’s well-pleaded facts as true a nd construes them in the light most favorable to him.- 8 - Archuleta v. Wagner , 523 F.3d 1278, 1283 (10th Cir. 2008). At summary judgment, however, the legal standards are different . “The party seeking summary judgment bears the initial burden of dem onstrating an absence of a genuine issue of material fact.” Sally Beauty Co. v. Beautyco, Inc. , 304 F.3d 964, 971 (10th Cir. 2002). But “[o]nce the moving party has properly supp orted its motion for summary judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial.” Id. Accordingly, the district court warned Mr. Wade in its order denying the government’s motion to dismiss that “to maintain hi s action[,] Mr. Wade will be required to produce evidence to support his allegations.” Aplt. App. at 98. Mr. Wade has failed to produce eviden ce showing that the amount of taxes he paid was indeed all that he owed. A nd he has not produced any legal authority holding that the estimated amounts set out in a presentence report prepared for use at sentencing in a prosecution for tax evas ion are a binding dete rmination of tax liability. See Pet. Opening Br. at 24. Moreover, he has not shown that the general three-year statute of limitati ons applies to this case. See id. at 22-24. In light of our determination that the Anti-Injunction Ac t barred Mr. Wade’s mandamus claim, we need not address his other arguments.- 9 - The judgment of the district court is A FFIRMED in all respect s, except that we REMAND for the district court to revise th e judgment to clarify that the petition was dismissed without prejudice for lack of subject matter jurisdiction.

Entered for the Court
William J. Holloway, Jr. Circuit Judge