McDermott v. United States ( 1998 )

USCA1 Opinion

                         [NOT FOR PUBLICATION]



                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT



                         ____________________





No. 97-1881



                         JULIAN R. MCDERMOTT,

                        and CAROL L. MCDERMOTT,



                        Plaintiffs, Appellants,



                                  v.



                       UNITED STATES OF AMERICA,



                         Defendant, Appellee.



                         ____________________





             APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MASSACHUSETTS



              [Hon. Patti B. Saris, U.S. District Judge]



                         ____________________



                                Before



                         Selya, Circuit Judge,

                      Cyr, Senior Circuit Judge,

                      and Boudin, Circuit Judge.



                         ____________________



    Julian R. McDermott on brief pro se.

         Loretta C. Argrett, Assistant Attorney General, Donald K. Stern,

United States Attorney, Robert L. Baker, Attorney, Tax Division,

Department of Justice, and David English Carmack, Attorney, Tax

Division, Department of Justice, on brief for appellee.



                         ____________________

                           March 18, 1998





            Per Curiam.  We have carefully reviewed the record and

    briefs on appeal and affirm the judgment below.  The only issue

  raised below, thus the only issue properly before us,   is

    whether summary judgment was improper because the date on which

    the appellant filed his 1987 tax return was in genuine dispute.

    In response to the government's showing that the appellant had

    no evidence that his return was filed on time, he was required

    to adduce specific facts which could reasonably support a

    decision in his favor.  Anderson v. Liberty Lobby, Inc. 477

    U.S. 242, 248 (1986).  At a minimum, he would have had to show

    that he timely and properly mailed his claim.  He did not

    discharge this obligation.  Rogers v. Fair, 902 F.2d 140, 143

    (1st Cir. 1990).

        Affirmed.  Loc. R. 27.1.