60 F.3d 834

MEMORANDUM**

David Regan appeals pro se the district court’s summary judgment for the United States in Regan’s action challenging the assessment of tax return preparer penalties assessed against him pursuant to 26 U.S.C. Sec. 6694(a).1 The district court concluded that the action was barred because the Forms 5838-AD (“Offer of Waiver of Restrictions on Assessment and Collection of Tax Return Preparer Penalty”) executed by the parties constituted a formal closing agreement pursuant to 26 U.S.C. Sec. 7121. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We vacate and remand.

Regan contends, and the United States concedes, that the district court erred by granting summary judgment for the government because Form 5838-AD standing alone does not constitute a formal closing agreement pursuant to 26 U.S.C. Sec. 7121. We agree.

In Whitney v. United States, we held that the signing of an Internal Revenue Service Form 870-AD (“Offer of Waiver of Restriction on Assessment and Collection of Deficiency in Tax and of Acceptance of Overassessment”), standing alone, does not estop a taxpayer from later seeking a tax refund. 826 F.2d 896, 897-98 (9th Cir. 1987). Here, the parties executed Forms 5838-AD which are analogous to Form 870-AD except Form 870-AD is used in connection with income and other tax liabilities while Form 5838-AD is used for tax preparer penalties.2 Thus, the district court erred by concluding the execution of Forms 5838-AD constituted a formal closing agreement. See id.

Because the district court had no occasion to consider whether Regan should be held to the terms of the Forms 5838-AD under the doctrine of equitable estoppel, we remand to give the district court an opportunity to consider that issue. See id. at 989.

VACATED AND REMANDED.

MEMORANDUM**

Michael E. Peterson, a former Washington state prisoner, appeals pro se the district court’s grant of summary judgment for the defendants, members of the Washington Indeterminate Sentence Review Board (“parole board”) in his 42 U.S.C. Sec. 1983 action.1 We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review de novo the district court’s grant of summary judgment, International Union v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993), and we affirm.2

Peterson contends that his due process rights were violated when he did not receive a second hearing before three armed robberies were considered in revoking his parole. This contention lacks merit.

Parole revocation does not require all the rights afforded a defendant in criminal proceedings, however, parolees are entitled to certain minimal due process before their parole is revoked. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). These minimum due process requirements include notice and opportunity for the parolee to be heard and to present evidence, the right to confront and cross-examine witnesses, a neutral and detached hearing body, and a written statement by the fact finders discussing the evidence relied upon and reasons for revoking parole. Morrissey, 408 U.S. at 489. A parole board may revoke parole status if it is determined that the parolee admitted to parole violations and if those violations are found to be reasonable grounds for revoking parole under state standards. Id. at 490.

Here, on February 9, 1989 Peterson’s parole was suspended based on nine suspected parole violations, including five armed robberies committed in the six months prior to Peterson’s parole suspension. A parole revocation hearing was held on March 26, 1989. Peterson, represented by counsel, pled guilty to four violations of his parole: (1) possession of marijuana; (2) leaving the state without permission; (3) failure to attend a drug rehabilitation program which was a condition of his parole; and (4) failure to pay an administrative $15 fine. Peterson denied committing the five armed robberies. Defendant Adkins deferred her decision on the parole revocation pending the outcome of Peterson’s criminal charges. On May 18, 1989, Peterson pled guilty to three counts of armed robbery and Adkins issued a decision revoking Peterson’s parole.

In his brief, Peterson admits that on March 6, 1989, “[p]laintiff was present at the hearing and was represented by counsel. The hearing was conducted by Board Member Adkins who heard evidence, testimony of witnesses, and arguments of counsel.” Peterson does not dispute that the parole board was a neutral and detached hearing body, or that he was provided with notice of the alleged violations, and a written statement discussing the evidence relied upon and reasons for revoking parole. His only allegation is that due process requires that he be provided with a second hearing in order to be heard and present evidence regarding the new armed robbery convictions.

Because Peterson’s first hearing complied with due process and because that hearing provided him with an opportunity to present evidence and to be heard in regard to the armed robberies, the district court did not err by dismissing Peterson’s action.3 See id. at 489. To the extent that Peterson is contending that the actions of the parole board violated the doctrine of separation of powers, we agree with the district court that this doctrine applies only to the federal government. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).

AFFIRMED.