United States District Court, D. Colorado
ROBERT S. HAMILTON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56 AND D.C.COLO.LCIVR 56.1
Robert E. Blackburn United States District Judge
The matter before is Plaintiff’s Motion for Partial Summary Judgment Pursuant to Fed.R.Civ.P. 56 and D.C.COLO.LCivR 56.1 and Incorporated Memorandum of Law [#78],  filed November 10, 2015. I deny the motion.
I have jurisdiction over this matter pursuant to 28 U.S.C. § 1346(a)(1) (civil action against the United States for recovery of internal revenue tax alleged to have been erroneously assessed or collected).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A movant who bears the burden of proof on a claim or defense must submit evidence to establish every essential element of that claim or defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).
This is an action for refund of taxes allegedly overpaid by plaintiff. The suit arises from plaintiff’s claim for charitable contribution deductions on his income tax returns for 2003, 2004, 2005, and 2006. Following an audit, plaintiff received a letter of disallowance from the Internal Revenue Service (“IRS” or “the agency”) on January 8, 2009. Plaintiff requested administrative review of that determination.
Shortly before the matter was forwarded to the IRS Office of Appeals, the agency requested an extension of the statute of limitations for assessment for tax years 2003 and 2004. Consequently, plaintiff and the agency executed a Form 872, entitled “Consent To Extend the Time To Assess Tax” (the “Restricted Consent”), which provides, in relevant part,
Robert S. Hamilton and the Commissioner of the Internal Revenue consent and agree to the following:
. . . .
(3) The amount of any deficiency assessment is to be limited to that resulting from: . . . (b) any adjustments to charitable contributions.
(Plf. Motion App., Exh. 4 at 1.) The case was not resolved as a result of the appeals process, and the IRS ultimately issued a Notice of Deficiency on January 12, 2012, disallowing the claimed ...