FILED
NOT FOR PUBLICATION JAN 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND T. NAKANO, No. 12-70992
Petitioner - Appellant, Tax Ct. No. 24600-08L
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Elizabeth Crewson Paris, Tax Court Judge, Presiding
Submitted January 16, 2014**
San Francisco, California
Before: O’SCANNLAIN, GRABER, and NGUYEN, Circuit Judges.
Petitioner Raymond T. Nakano seeks review of the Tax Court’s final
decision sustaining the Office of Appeals’ determination that upheld the Appellee
Commissioner of the Internal Revenue Service’s ("Commissioner") administrative
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
collection action under 26 U.S.C. § 6672 for unpaid excise taxes. For the reasons
that follow, we affirm.
1. The Commissioner did not abuse his discretion in determining that notice
and demand under 26 U.S.C. § 6303(a) had been satisfied in a timely manner. See
Fargo v. Comm’r, 447 F.3d 706, 709 (9th Cir. 2006) (reviewing the
Commissioner’s decision for abuse of discretion); Elias v. Connett, 908 F.2d 521,
525 (9th Cir. 1990) ("The form on which a notice of assessment and demand for
payment is made is irrelevant as long as it provides the taxpayer with all the
information required under 26 U.S.C. § 6303(a)."). Petitioner received, within 55
days of his assessments, final notices of intent to levy and opportunity for hearing,
26 U.S.C. §§ 6330, 6331(d), that included the amount owed and a request for
payment in satisfaction of § 6303. See Hughes v. United States, 953 F.2d 531, 536
(9th Cir. 1992).
2. Petitioner’s challenge to the sufficiency of the Notice of Determination
also fails. The Notice of Determination stated sufficiently that it sustained the
administrative collection action because the Commissioner had satisfied notice and
demand under § 6303. See Alaska Dep’t of Envt’l Conservation v. EPA, 540 U.S.
461, 497 (2004) ("Even when an agency explains its decision with less than ideal
2
clarity, a reviewing court will not upset the decision on that account if the agency’s
path may be reasonably discerned." (internal quotation marks omitted)).
3. The Tax Court did not err in disregarding Plaintiff’s challenge to ex parte
communications, which he raised for the first time in a post-trial reply brief. See
Matthies v. Comm’r, 134 T.C. 141, 155 n.14 (2010) ("As a general rule, this Court
will not consider issues first asserted on brief. When issues are presented in the
reply brief only, there is even stronger reason to disregard them." (citation
omitted)). In any event, the Tax Court’s decision was reasoned sufficiently on all
arguments properly before it. See Leonard Pipeline Contractors, Ltd. v. Comm’r,
142 F.3d 1133, 1135 (9th Cir. 1998) (stating the standard for sufficient reasoning
as that the Tax Court must "bring together the disparate elements and give some
account of how the judge has reached his conclusion").
4. The Office of Appeals did not violate the prohibition on ex parte
communications by relying on advice from the Office of Chief Counsel in reaching
an independent determination. See Rev. Proc. 2000-43, 2000-2 C.B. 404,
superseded by Rev. Proc. 2012-18, 2012-10 I.R.B. 455 (providing explicitly that
the prohibition on ex parte communications does not apply to communications
between the Office of Appeals and the Office of Chief Counsel, subject to some
limited exceptions not applicable here).
AFFIRMED.
3