[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 30, 2007
No. 06-15880
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-01242-CV-T-MAP
WILLIAM P. PLANES,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 30, 2007)
Before ANDERSON, BARKETT and COX, Circuit Judges.
PER CURIAM:
After oral argument and careful consideration, we conclude that the
judgment of the district court is due to be affirmed. Taxpayer’s argument that the
December 16, 2002, notice of proposed assessment was sent to an incorrect
address, thereby invalidating the assessment, is without merit because the notice
was sent to the address specified in regulations which taxpayer does not contest.
The notice was sent to the precise address listed by taxpayer in its most recent
return, with the exception of an immaterial (more accurate) zip code. The finding
that taxpayer had failed to advise IRS in a clear and concise manner of a change of
address is amply supported in the record. The record is clear that taxpayer failed to
advise Agent Stone of the old address which he wanted corrected, and that both
Agent Stone and taxpayer himself were unaware during the July 2002 interview
that the record address for the taxpayer was incorrect.
There is no merit in taxpayer’s argument that he has not violated his duties
under the offer in compromise. His argument that the withholding taxes for which
he is liable as the responsible person are not “his taxes” is belied by the express
provisions of item 5 of the offer in compromise itself which treat such withholding
taxes as his taxes. For the same reason, his argument that his liability for the
withholding taxes is a penalty, not a tax, and thus not a violation of his obligation
under the offer in compromise to pay his taxes is without merit. Item 5 expressly
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includes within the concept of his tax liabilities not only the tax itself, but also
penalties. Furthermore, the statute expressly includes such penalties as part of the
tax.
Taxpayer’s argument that the corporation’s belated payment of the
withholding tax cures his previous default is without merit. The default occurred
when the withholding taxes were not paid on time. While the belated payment
eliminated the tax, it did not retroactively erase the previous default.
The taxpayer’s conclusory argument about an ex parte communication does
not warrant relief, both because of the conclusory nature of the argument in the
brief, and also because the issue was not properly preserved for judicial review.
Accordingly, the judgment of the district court is
AFFIRMED.
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