US v. Austin, et al

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Per Curiam. Unpublished. [10-2054]

Case: 10-2054

Document: 00116565708

Page: 1

Date Filed: 08/06/2013

Entry ID: 5754102

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 10-2054
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
STEPHEN W. AUSTIN AND LINDA P. AUSTIN,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before
Howard, Selya and Thompson,
Circuit Judges.

Timothy J. Burke for appellants.
Melissa Briggs, Attorney, Tax Division, U.S. Department of
Justice, with whom Kathryn Keneally, Assistant Attorney General,
Carmen Milagros Ortiz, United States Attorney, and Bruce R.
Ellisen, Attorney, Tax Division, were on brief, for appellee.

August 6, 2013

Case: 10-2054

Document: 00116565708

Per curiam.

Page: 2

Date Filed: 08/06/2013

Entry ID: 5754102

We recently wrote that:

In
the
adjudication
of
appeals,
starting from scratch and building a rationale
from the ground up is sometimes an extravagant
waste of judicial resources. To minimize such
idle exercises, we have noted that when a
trial court accurately takes the measure of a
case, persuasively explains its reasoning, and
reaches a correct result, it serves no useful
purpose for a reviewing court to write at
length in placing its seal of approval on the
decision below.
Moses v. Mele, 711 F.3d 213, 215-16 (1st Cir. 2013).

We have

followed this wise prescription in a number of other cases, see,
e.g., Marek v. Rhode Island, 702 F.3d 650, 653 (1st Cir. 2012);
Eaton v. Penn-Am. Ins. Co., 626 F.3d 113, 114 (1st Cir. 2010);
Seaco Ins. Co. v. Davis-Irish, 300 F.3d 84, 86 (1st Cir. 2002);
Ayala v. Union de Tronquistas de P.R., Local 901, 74 F.3d 344, 345
(1st Cir. 1996); In re San Juan Dupont Plaza Hotel Fire Litig., 989
F.2d 36, 38 (1st Cir. 1993), and we follow it here.
This case is fact-specific and breaks no new legal
ground.

The district court's opinion is crisp and cogent.

Contrary to the taxpayers' importunings, the district court did not
rely impermissibly on the Internal Revenue Service Manual; it only
used the Manual for a wholly permissible purpose: to ascertain the
Service's usual practice and procedure.
To be sure, the district court did not address the
taxpayers' late-blooming due process claim.
obviously flawed.

But this claim is

First, it was not raised prior to the district

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Case: 10-2054

Document: 00116565708

Page: 3

Date Filed: 08/06/2013

Entry ID: 5754102

court's ruling on summary judgment and is, therefore, not properly
before us.

See Cochran v. Quest Software, Inc., 328 F.3d 1, 11

(1st Cir. 2003) ("Litigation is not a game of hopscotch.
generally

accepted

that

a

party

may

not,

on

a

It is

motion

for

reconsideration, advance a new argument that could (and should)
have

been

presented

prior

to

the

district

court's

original

ruling.") Second, the due process claim is neither developed nor
embellished with relevant authorities.

These omissions bring to

bear the "settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."
F.2d 1, 17 (1st Cir. 1990).

United States v. Zannino, 895

And third, the due process claim is

patently insubstantial.
We need go no further.

We affirm the judgment below for

substantially the reasons elucidated by that court.

See United

States v. Austin, No. 09-10405, 2010 WL 1711294, at *3 (D. Mass.
Apr. 26, 2010). The statute of limitations was tolled with respect
to the 1993 tax year and, thus, the government's collection action
was timely.

Affirmed.

See 1st Cir. R. 27.0(c).

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