Submitted: October 15, 2018
from United States District Court for the District of
Minnesota - Minneapolis
SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Meyer failed to file timely federal income tax returns for
tax years 2002 and 2009, and the Government levied tax
assessments. Meyer maintains that those assessments are
invalid because the Internal Revenue Service
("IRS") failed to follow Internal Revenue Code
provisions requiring it to mail a notice of deficiency
("NOD" or "ninety-day letter") to him for
each tax year before assessing deficiencies. The district
court granted the Government's motion for
summary judgment and denied Meyer's cross motion for
summary judgment. Meyer appeals both orders. We affirm.
review de novo district court orders on summary
judgment. RSA 1 Ltd. P'ship v. Paramount Software
Assocs., Inc., 793 F.3d 903, 906 (8th Cir. 2015).
Summary judgment is proper if the movant "shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
assessing liability for unpaid taxes, the IRS must send a NOD
to the taxpayer's last known address by certified mail or
registered mail. 26 U.S.C. §§ 6212(a), 6213(a).
Within ninety days after the NOD is mailed, "the
taxpayer may file a petition with the Tax Court for a
redetermination of the deficiency." 26 U.S.C. §
6213(a). Absent proper mailing of the NOD, subsequent
assessments may be enjoined. Id.
Government bears the burden of proving that the IRS properly
mailed a NOD "by competent and persuasive
evidence." Welch v. United States, 678 F.3d
1371, 1378 (Fed. Cir. 2012). It is entitled to a rebuttable
presumption of proper mailing if it "(a) shows that the
notice of deficiency existed and (b) produces a properly
completed Postal Form 3877 certified mail log (or
equivalent)." O'Rourke v. United States,
587 F.3d 537, 540 (2d Cir. 2009) (per curiam). The Government
may also meet its burden with evidence that is
"otherwise sufficient." Id.
"[S]ufficiently corroborative evidence in the form of
testimony, correspondence, habit evidence, or otherwise"
will establish both "the existence of the notice of
deficiency and of timely mailing." Welch, 678
F.3d at 1380.
these types of cases, the Government often produces IRS Form
4340, "which is a computer generated form that reflects
the taxes assessed to and paid by the taxpayer in a
particular year." United States v. Jimenez, 513
F.3d 62, 79 n.4 (3d Cir. 2008). There is "substantial
precedent" that Form 4340 is an "appropriate
source evidencing the IRS's assessment and notice of
tax arrears." Perez v. United States, 312 F.3d
191, 195 (5th Cir. 2002) (per curiam). Many courts regard it
as "presumptive proof of a valid assessment."
Cropper v. Comm'r, 826 F.3d 1280, 1287 (10th
Cir. 2016); United States v. White, 466 F.3d 1241,
1248 (11th Cir. 2006); United States v. Filson, 347
Fed.Appx. 987, 990 (5th Cir. 2009) (per curiam);
Geiselman v. United States, 961 F.2d 1, 6 (1st Cir.
1992) (per curiam); United States v. Zarra, 477
Fed.Appx. 859, 860 (3d Cir. 2012); see also Laszloffy v.
Comm'r, 297 Fed.Appx. 628, 629 (9th Cir. 2008)
(affirming a grant of summary judgment in favor of the
Government because "Form 4340 established that the IRS
made a valid tax assessment and sent [the taxpayer] a proper
notice of assessment and demand for payment").
Government did not produce a Postal Form 3877 for either tax
year 2002 or 2009. Thus, the rebuttable presumption of proper
mailing does not apply. But the Government did produce a Form
4340 for both years. It also produced a copy of the NOD for
tax year 2002 and a Case History Report for tax year 2009.
acknowledges that "Forms 4340 have been routinely
admitted in many tax cases" but claims that they are
inadequate in this case because they do not indicate when the
NODs were mailed. While the Form 4340s do not show when the
NODs were mailed, they do show the dates when the Government
assessed deficiencies against Meyer. They also explain that
those assessments were made "per default of 90 day
letter." This explanation is sufficient to establish
that the NOD was mailed when a copy of the NOD was also
produced during discovery. See United States v.
Rohner, 634 Fed.Appx. 495, 501-02 (6th Cir. 2015)
(affirming a district court's finding that the Government
"met its burden to present the requisite 'otherwise
sufficient' evidence" when it produced copies of the
notices and when "each Form 4340 stated that additional
tax had been assessed 'per default of 90 day
letter'"). Because the Government produced a copy of
the NOD and Form 4340 for tax year 2002, it established both
the existence and proper mailing of the NOD for that year.
Government did not produce a copy of the NOD for the 2009 tax
year, but it submitted a Case History Report that describes
steps taken by the IRS officer assigned to Meyer's case.
This report provides additional evidence of both the
existence and mailing of the NOD for 2009. It states that on
January 3, 2013, the officer was "[s]ending to have 90
day letter issued" and indicates that the NOD was, in
fact, issued on January 25, 2013. Also, as the district court
noted, "the 2009 Form 4340 reflects that tax was
assessed 'per default of 90 day letter' on June 10,
2013, which is more than 90 days from when the NOD was
allegedly sent, [on] January 25, 2013." United
States v. Meyer, No. 16-774, 2017 WL 3016761, at *6 (D.
Minn. July 14, 2017). We conclude that the Case History
Report and the Form 4340 produced by the Government establish
both the existence and mailing of the NOD for tax year 2009.
states that he did not receive the NODs and claims that this
is sufficient to rebut any presumption of proper mailing
under the common-law mailbox rule. But the mailbox rule is
inapplicable here. First, it creates a presumption of
receipt of mail after the sender
establishes proper mailing. See, e.g.,
Ark. Motor Coaches, Ltd., Inc. v. Comm'r, 198
F.2d 189, 191 (8th Cir. 1952) ("Where, as in this case,
matter is transmitted by the United States mails, properly
addressed and postage fully prepaid, there is a strong
presumption that it will be received by the addressee in the
ordinary course of the mails."); In re Cendant Corp.
Prides Litig., 311 F.3d 298, 304 (3d Cir. 2002)
("The common law has long recognized a presumption that
an item properly mailed was received by the
addressee."). Second, Meyer does not cite any precedent
tying the mailbox rule to disputes involving the IRS and its
obligation to send NODs before assessing deficiencies. Third,
Meyer disregards 26 U.S.C. § 6212, which "does not
require actual receipt of the mailing." See Pagonis
v. United States, 575 F.3d 809, 813 (8th Cir. 2009)
(stating that "a notice sent by certified mail to a
taxpayer's last known address complies with the statutory
requirements, even if it is returned unclaimed").
Indeed, "[t]hat the taxpayer did not receive actual
notice of the deficiency is irrelevant." United
States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976). For
all these reasons, Meyer's claim that he did not receive
the NODs does nothing to undermine the dispositive evidence
of proper mailing produced by the Government.
in his reply brief, Meyer challenges the reliability and
admissibility of Form 4340s by claiming that (1) their
creation involves the translation of digital information into
plain language, (2) this translation creates new,
inadmissible evidence, (3) Form 4340s are not "duly
published systems of records, and maintaining such systems is
a crime," and (4) because the maintenance of Form 4340s
is a crime, they cannot qualify as public records and are
inadmissible hearsay. We need not consider these claims
because they appear for the first time in a reply brief.
See Barham v. Reliance Standard Life Ins. Co., 441
F.3d 581, 584 (8th Cir. 2006) ("As a general rule, we
will not consider arguments raised for the first time in a
reply brief."); Chay-Velasquez v. Ashcroft, 367
F.3d 751, 756 (8th Cir. 2004) ("Since there was no
meaningful argument on this claim in his opening brief, it is
waived."). Nevertheless, Meyer's conclusions are
contrary to substantial precedent from other circuits that
have determined that Form 4340s are highly probative evidence
and that have rejected similar claims made by taxpayers in
other cases. See, e.g., Hughes v. United
States, 953 F.2d 531, 539-40 (9th Cir. 1992) (rejecting
a taxpayer's argument that Form 4340s are inadmissible
because they are hearsay and because they were
"generated by a computer, and the government did not lay