IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40837

Summary Calendar

UNITED STATES OF AMERICA, Department of Justice,

Plaintiff - Appellee

v.

GORDON RAMZAN NIAMATALI,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-cv-108

Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

The United States filed suit against Gordon Niamatali to recover unpaid

taxes. After a bench trial, Niamatali was ordered to pay substantial sums. On

appeal, he challenges the precise calculation of his income tax liability, penalties,

and additions. We AFFIRM the judgment except as to one of the penalties. We

VACATE the judgment for a recalculation of a specific penalty in light of the

Government’s admission of error regarding it.

United States Court of Appeals

Fifth Circuit

F I L E D

July 26, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 09-40837

In 2000 and 2001, Niamatali was a practicing anesthesiologist working as

an independent contractor and also as an employee in McAllen, Texas. After

Niamatali failed to file federal income tax returns in both years, the Internal

Revenue Service prepared substitute tax returns on his behalf.

Over the ensuing years, the IRS issued a statutory notice of deficiency and

sent Niamatali several notices related to the deficiency and its intent to levy. In

2004, the IRS issued a Form 4340 for each tax year, assessing the liabilities,

additions, and interests. The IRS also recorded a notice of federal tax lien with

the county clerk in Hidalgo County, Texas. Subsequently, Niamatali filed tax

returns for the tax years of 2000 and 2001. He reported no tax liability,

attaching a brief to the 2000 tax return explaining his position. Through a levy,

the IRS obtained a portion of the balance due from Niamatali.

On May 8, 2007, the United States brought suit in federal district court

seeking to reduce to judgment the federal income tax assessments against

Niamatali and to foreclose the federal tax liens against two parcels of his

property. During a two-day bench trial, Niamatali advanced several tax

protestor arguments and also challenged the calculation of taxes, penalties, and

additions imposed. Both Niamatali and the Government offered witnesses

testifying to the amount Niamatali owed the Government.

The court ruled for the Government. It entered a judgment establishing

Niamatali’s tax liabilities, penalties, and additions, and authorizing the

Government to foreclose on the federal tax liens against his property.

Proceeding pro se on appeal, Niamatali argues that the district court erred

in ordering statutory penalties and in accepting the Government’s assessment

and accounting of payments due instead of his accounting.

On appeal after a bench trial, we review findings of fact for clear error and

legal conclusions de novo. Villafranca v. United States, 587 F.3d 257, 260 (5th

Cir. 2009). “A factual finding is not clearly erroneous as long as it is plausible

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in the light of the record read as a whole.” Id. (citation and quotation marks

omitted).

Tax assessments by the IRS are presumed correct; the taxpayer bears the

burden of overcoming that presumption by a preponderance of the evidence.

United States v. Lochamy, 724 F.2d 494, 497-98 (5th Cir. 1984). The

Government supported its assessments for 2000 and 2001 with Forms 4340.

“IRS Form 4340 constitutes valid evidence of a taxpayer’s assessed liabilities and

the IRS’s notice thereof.” Perez v. United States, 312 F.3d 191, 195 (5th Cir.

2002) (citation omitted). The Government also offered a transcript of

information reported to the IRS by third parties. At trial, an IRS compliance

officer and an IRS reports analyst testified. Niamatali testified on his own

behalf and introduced as a witness the tax consultant who prepared his tax

returns.

Upon review of the testimony, we conclude it was not clearly erroneous for

the court to reject Niamatali’s calculations. Niamatali’s conclusional assertions

do not overcome the presumption of correctness to which the IRS’s assessments

are entitled.

Moreover, we are not convinced by Niamatali’s contention that the Form

4340 was insufficient because the Government did not produce a Form 23C

assessment certificate. The Form 4340 provided Niamatali with the information

required. See Treas. Reg. § 301.6203-1.

On appeal, the Government concedes error in its assessing the failure-topay penalty under I.R.C. § 6651(a)(2).

We AFFIRM the judgment in all respects except for the assessment of the

Section 6651(a)(2) penalty as to each tax year. As to that penalty, we VACATE

and REMAND to the district court for further proceedings.

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