* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 31 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. EDWARD G. NOVOTNY, in his individual capacity as Trustee of MIDWEST LIMITED and SUNRISE INVESTMENTS,

Defendant-Appellant, STATE OF COLORADO; DEPARTMENT OF REVENUE,

Defendant-Appellee, and ETTA B. NOVOTNY,

Defendant. No. 02-1417 (D.C. No. 99-RB-2196 (PAC))

(D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant Edward G. Novotny, appearing pro se, appe als the district court’s adverse judgment in this civil tax matter. He asserts that the district court lacked jurisdiction to hear and determine the case against him. This court exercises its jurisdiction pursuant to 28 U.S.C. §1 291 and affirms.

BACKGROUND The United States brought suit to reduce to judgment assessments against Mr. Novotny for income taxes, penalties, and intere st from tax years 1989 through 1991 and to foreclose its liens upon seven parcels of real property nominally held by two trusts, Midwest Limited and Sunrise Investme nts. The United States named as defendants in the action all known parties having an interest in the parcels of property, including the trusts, Etta B. Novotny (the taxpayer’s spouse), and the State of Colorado, Department of Revenue (w hich had filed its own tax liens against the properties). The trusts, Mrs. No votny, and the State of Colorado filed various counterclaims and crossclaims.1 Although Mrs. Novotny has entered a pro se notice o f appearance, she is

not an appellant in this matter. Neither she nor h er husband may represent the trusts. See Knoefler v. United Bank , 20 F.3d 347, 348 (8th Cir. 1994) (holding that a nonlawyer trustee may not represent a trust in federal court). Further, as an (continued...) -3- After a series of orders and a bench trial, the dis trict court concluded that: (1) Mr. Novotny was liable to the United States forfederal income taxes and statutory assessments in the amount sought by the U nited States, $171,932.76; (2) the transfers of the seven parcels of property to the trusts were void as to the United States, in that the trusts were shams an d also alter egos and nominees of Mr. Novotny; (3) the transfers should be set asi de and the federal tax liens foreclosed on the properties; (4) Mrs. Novotny was entitled to judgment quieting title to her undivided one-half interest in the pro perties; and (5) the State of Colorado’s tax lien against the properties is valid , subordinate, and junior to that of the United States. Accordingly, the court entered judgment and orderedthe properties sold, with one half of the net sale proceeds to be applie d first to Mr. Novotny’s federal tax liability, and if this liability is sat isfied and funds remain, then to Mr. Novotny’s Colorado state tax liability. The ot her half of the net proceeds was to be paid to Mrs. Novotny. The court also entered a deficiency judgment against Mr. Novotny and in favor of the United States, if t he proceeds of the sale did not satisfy the federal tax debt. Only Mr. Novotny has appealed. 11 (...continued)

individual litigant, Mrs. Novotny prevailed in district court. -4- DISCUSSION Mr. Novotny’s appellate arguments are not entirely clear, but they appear to focus on the district court’s jurisdiction. We rev iew the question of the district court’s jurisdiction de novo. Kunkel v. Cont’l Cas. Co. , 866 F.2d 1269, 1273 (10th Cir. 1989). Although we liberally construe Mr. Novotny’s pro s e appellate brief, see Ledbetter v. City of Topeka , 318 F.3d 1183, 1187 (10th Cir. 2003), we will not assume the role of his advocate, see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). As we decipher the argument sect ion of Mr. Novotny’s brief, he makes four jurisdictional challenges. First, he claims that the federal district court lacked jurisdiction to determine the legal st atus of the trusts for tax purposes, because the ruling “debauch[ed] unlawfull y the trust laws enacted by the Colorado Legislature as purveyors of a sham,” Appellant’s Br. at 9. Second, he asserts that the United States did not comply wi th his own novel interpretation of 26 U.S.C. § 7401, a provision which states that a tax civil action may not be commenced unless the Secretary of Treasury or his d elegate authorizes it and the Attorney General or his delegate directs that it be commenced. Third, he claims that, in ruling against him, judicial officials vio lated their oaths promising to-5-

defend the United States Constitution and were ther efore acting outside of their jurisdiction. And finally, he argues that the dist rict court lost its jurisdiction when it applied the general rule that taxpayers bea r the burden of establishing the error in the IRS’s determination of the tax due, United States v. Brown, ___ F.3d ___, No. 01-4229, 2003 WL 21529086, *4 (10th Cir. J uly 8, 2003), a procedure that left him defenseless against an unconstitution al bill of pains and penalties. It is plain that 26 U.S.C. § 7402 and 28 U.S.C. § 1 340 explicitly vest federal district courts with jurisdiction over civi l actions involving the enforcement of the internal revenue laws. Further, the government satisfactorily established the necessary jurisdictional elements i n this case. We find no merit in Mr. Novotny’s jurisdictional challenges and conclud e that they are patently incorrect. To the extent that Mr. Novotny has attempted to mak e other arguments on appeal, and seeks a review of evidentiary ruling s or the sufficiency of the evidence, those arguments are waived by his failure to provide us with a transcript of the trial. See United States v. Vasquez , 985 F.2d 491, 495 (10th Cir. 1993) (stating that a failure to file a transcript preclu des review of evidentiary rulings or claims concerning sufficiency of the evidence).-6-

Mr. Novotny’s motion to file a supplement reply bri ef is GRANTED. The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Chief Judge