United States of America v. Robbin et al
MEMORANDUM OPINION AND ORDER. The Defendants Ronny and Lynette Robbin's Motion to Alter or Amend Judgment (Doc. No. 69 ) is DENIED. (Written Opinion) Signed by Judge Donovan W. Frank on 10/16/2017. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America
Civil No. 16-83 (DWF/LIB)
OPINION AND ORDER
Ronny B. Robbin,
Lynette R. Robbin,
North American State Bank,
and State of Minnesota
LaQuita Taylor-Phillips, Esq., and Michael R. Pahl, Esq., United States Department of
Justice, Tax Division, counsel for Plaintiff.
Ronny B. Robbin, pro se, and Lynette R. Robbin, pro se, Defendants.
D. Sherwood McKinnis, Esq., and Jacob G. Peterson, Esq., counsel for Defendant North
American State Bank.
This matter is before the Court on Defendants Ronny and Lynette Robbin’s
Motion to Alter or Amend the Judgment (Doc. No. 69). For the reasons discussed below,
the Court denies the Robbins’ motion.
The Court assumes the reader’s familiarity with the facts of this case, which are
set forth more fully in the Court’s Memorandum Opinion and Order (Doc. No. 65). In
short, the Government assessed Defendant Ronny Robbin for unpaid taxes for 2003 and
2005 and penalties for filing frivolous returns in 2004 and 2005. The dispute between the
Government and Mr. Robbin is not about an unwarranted deduction or arithmetic error.
Instead, Mr. Robbin has taken the faulty position that his income is not taxable because it
was not corporate profit. The Government filed suit seeking to recover $213,862.79 in
unpaid taxes, penalties, fees, and interest. 1 To satisfy the assessment, the Government
sought an order compelling the sale of the Robbins’ home (the “Belgrade Property”). On
August 9, 2016, the Court granted the Government’s Motion for Summary Judgment
(Doc. No. 65) and ordered the sale of the Belgrade Property (Doc. No. 66). The Robbins
have now filed a motion to alter or amend the judgment. (Doc. No. 69.)
Motion to Amend the Judgment
“Rule 59(e) motions serve a limited function of correcting ‘manifest errors of law
or fact or to present newly discovered evidence.’ Such motions cannot be used to
introduce new evidence, tender new legal theories, or raise arguments which could have
been offered or raised prior to entry of judgment.” United States v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (internal quotations omitted); see also
Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d
1284, 1286 (8th Cir. 1998). Relief under Rule 59(e) is granted in only “extraordinary”
circumstances. See United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986).
The Government also sued Mrs. Robbin (who files her taxes separately), North
American State Bank, and the State of Minnesota to resolve their possible property
interests in the Belgrade Property.
The Robbins’ Motions
The Robbins contend that the Court made three errors: (1) rejecting the Robbins’
argument that the notices of deficiency were not sent; (2) considering Exhibits 11 through
16 attached to Deborah Olson’s Supplemental Declaration (Doc. No. 55); and
(3) rejecting the Robbins’ argument that the proper person had not signed the notices of
deficiency or penalty assessments.
Notices of Deficiency were Sent
The Robbins first argue 2 that the Court erred by concluding that the Government
had sufficiently demonstrated that it had sent notices of deficiency to the Robbins. The
Robbins focus on which party bears the burden of proof. But regardless, the record
demonstrated that the IRS did in fact send notices of deficiencies on March 24, 2008,
June 7, 2010, October 7, 2013, October 6, 2014, and June 29, 2015. (See, e.g., Doc.
No. 55 (“Olson Supp. Decl.”) ¶ 9, Ex. 14 at 4.) The Robbins performed no discovery in
this case, and therefore cannot point to any evidence to the contrary. Instead, the Robbins
rely on a declaration from Mr. Robbin stating that he did not receive the notices of
deficiency. 3 (Doc. No. 51.) When the Government deposed Ronny Robbins, he refused
The phrase “first argue” might be slightly inaccurate: The Robbins spend the first
seven pages of their brief disparaging the Court, its law clerk, former Secretary of State
Hillary Clinton, former FBI Director James Comey, and exulting the election of “Populist
President Trump.” The Court concludes that these arguments do not provide grounds for
relief under Federal Rule of Civil Procedure 59(e).
As the Court concluded previously, even if Mr. Robbin did not receive the notices,
the Government satisfied its burden by mailing the notices. United States v. Ahrens, 530
F.2d 781, 785 (8th Cir. 1976) (“That the taxpayer did not receive actual notice of the
deficiency is irrelevant.”).
to answer questions regarding his tax obligation on Fifth Amendment grounds. (Doc.
No. 48 ¶ 2, Ex. 8). To avoid a motion for summary judgment, the nonmoving party
cannot rely on denials and self-serving affidavits. See Krenik v. Cty. of Le Sueur, 47 F.3d
953, 957 (8th Cir. 1995). Thus, the Robbins have failed to show the Court erred by
concluding that the IRS sent notices of deficiencies to Mr. Robbin.
Admissibility of Exhibits 11 through 16
The Robbins also argue that the Court erroneously considered Exhibits 11 through
16 of Deb Olson’s Supplemental Declaration. The Court cited Exhibit 14 (a copy of the
Certificates of Assessments, Payments, and other Specified Matters (Form 4340)), and
Exhibit 15 and 16 (copies of Civil Penalty Forms) in support of its conclusion that
Mr. Robbin had failed to show that the Government had not sent him notices of
deficiency or that the IRS had not followed the proper procedure in assessing him civil
penalties for his frivolous tax filings. The Robbins contend that the Court erred in
considering Exhibits 14-16 because they were made for the purposes of litigation, are
inauthentic, inadmissible hearsay, and incomplete copies.
To start, the Robbins argue that the Court erred in considering the exhibits because
they were made for the purposes of litigation. But there is no blanket prohibition on
evidence made for the purposes of litigation. And none of the cases that the Robbins cite
supports such a rule: Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d 618, 628 (1st
Cir. 1988) (concluding that a statement made in contemplation of litigation was not a
business-record exception); Shenker v. United States, 322 F.2d 622, 627 (2d Cir. 1963)
(same); Nuttall v. Reading Co., 235 F.2d 546, 550 (3d Cir. 1956) (same); Hartzog v.
United States, 217 F.2d 706, 709 (4th Cir. 1954) (same). Thus, the Robbins have failed
to show that the Court committed manifest error by considering documents made for the
purpose of litigation. 4
Next, the Robbins argue that the Court erred by concluding that the exhibits were
authentic. For Exhibit 14, the Robbins contend that the Court erred by concluding that
Exhibits 14 was self-authenticating under Federal Rule of Evidence 902(2). Exhibit 14
was a copy of the Certificates of Assessments, Payments, and other Specified Matters
(Form 4340), which shows the timing of when the notices of deficiency were mailed.
The Court concluded that the evidence was self-authenticated under Rule 902(2).
Evidence is self-authenticating under Rule 902(2) when it bears an officer’s signature of
a public entity and another officer within the same entity certifies that the signer has the
official capacity and that the signature is genuine. F.R.E. 902(2). Here, the Robbins
argue that the Court erred because there was no certification by another officer. Even if
the Robbins are correct, and Exhibit 14 is not self-authenticating under Federal Rule of
Evidence 902(2), the form is authentic under F.R.E. 902(4) or 901(a). See Brewer v.
United States, 764 F. Supp. 309, 318 (S.D.N.Y. 1991) (“Consistently, courts have held
that Form 4340 is self-authenticating.”). Thus, the Robbins have not shown that the
Court committed manifest error by concluding that Exhibit 14 is authentic.
The Robbins also argue that the Court erred by concluding that Exhibit 15 and 16
were authentic under Rule 901. Exhibits 15 and 16 are copies of the forms used to
To the extent that the Robbins argue that the exhibits are impermissible hearsay,
the Court will address that argument later.
evaluate whether civil fines should be assessed. Exhibits 15 and 16 were submitted with
an affidavit from Deb Olson, an IRS Revenue Officer Advisor, who attested that the
documents were forms used to evaluate whether Mr. Robbin should be fined. The
Robbins make no specific argument about the authenticity of the exhibits, other than
stating that an authentic document must still be otherwise admissible. Point taken. The
Robbins have therefore failed to show the Court erred by concluding that Exhibits 15 and
16 were authentic.
The Robbins also argue that the Court erred by concluding that the exhibits were
admissible hearsay under the public-record exception, F.R.E. 803(8). Rule 803(8)
provides an exception for “[a] record or statement of a public office if it sets out: (i) the
office’s activities; (ii) a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in
a civil case or against the government in a criminal case, factual findings from a legally
authorized investigation.” F.R.E 803(8). The Robbins mistakenly interpret Rule 803(8)
as a three-prong test and therefore point out that prongs one and three are not satisfied.
But because records of tax and fine assessments are matters observed while under a legal
duty to report, they meet the public-records exception. See United States v. Fletcher, 322
F.3d 508, 518 (8th Cir. 2003). The Robbins also contend that they have submitted
information to indicate that the exhibits lack trustworthiness (the second part of
Rule 803(8)). But at most, the Robbins question how the Government could create the
documents so close to Christmas and New Year’s. That alone does not render the
exhibits untrustworthy. Thus, the Robbins have failed to show the Court committed
manifest error by concluding that Exhibits 14 through 16 were admissible hearsay.
The Robbins also argue that the Court erred by considering Exhibits 11 and 12
because they were incomplete copies. Exhibits 11 and 12 are notices of deficiency sent
to Mr. Robbin on January 3, 2005, and September 4, 2007, respectively. In opposing
summary judgment, the Robbins had contended that it is “well known” that notices of
deficiency contain “at least a few pages of factual and numerical basis of fact and
penalties listed in them.” (Doc. No. 58.) The Internal Revenue Code, however, “does
not specify the form or content of the notice. The purpose of the notice is only to advise
the person who is to pay the deficiency that the Commissioner means to assess him;
anything that does this unequivocally is good enough.” Sather v. Comm’r, 251 F.3d
1168, 1176-77 (8th Cir. 2001). Here, Exhibits 11 and 12 informed Mr. Robbin that the
Government intended to assess him. Thus, Exhibits 11 and 12 are complete notices of
deficiency. The Robbins therefore have failed to show that the Court committed manifest
error by considering Exhibits 11 and 12.
The Robbins Failed to Meet Their Burden
Last, the Robbins contend that the Court erroneously rejected the argument that
the Government did not follow the proper procedures in assessing the taxes and penalties
against the Robbins. In particular, the Robbins argue that the proper person has not
signed the notices of deficiency or penalties assessments, as required by statute. See
26 U.S.C. §§ 6212(a) & 6751. In support of this argument, the Robbins cite Muncy v.
Commissioner, 637 F. App’x 276 (8th Cir. 2016), an unpublished case. 5 In Muncy,
however, the Eighth Circuit concluded that the tax court had erred because it did not
consider whether the proper person signed the notice of deficiency. Id. Here, in contrast,
the Court concluded that the Robbins have failed to meet their burden of showing that the
Government did not follow the proper procedure. See United States v. Ahrens, 530 F.2d
781, 786 (8th Cir. 1976). 6 Thus, the Court rejected the Robbins’ arguments that the
proper person did not sign the notices of deficiency or the penalty assessments. The
Robbins therefore failed to show the Court committed manifest error.
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that the Defendants Ronny and Lynette Robbin’s Motion to Alter
or Amend Judgment (Doc. No. ) is DENIED.
Dated: October 16, 2017
s/Donovan W. Frank
United States District Judge
Unpublished cases from the Eighth Circuit have no precedential value. 8th Cir. R.
31.1A (citation of unpublished opinions).
The Robbins criticize the Court for relying on Ahrens. Specifically, the Robbins
contend that the Court erred by placing the burden on the taxpayer to rebut the
presumption that the Government followed the proper procedures. That is precisely what
the Eighth Circuit in Ahren concluded. The parties could not produce the notice of
deficiency. Nonetheless, the Eighth Circuit concluded that “[i]n the absence of any
rebuttal proof, we are bound to presume the validity of the contents of the statutory notice
of deficiency.” 530 F.2d at 786-87. Likewise here, absent evidence to the contrary from
the Robbins, the Court presumes the proper person signed the notices of deficiency or
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