Arnett v. Commissioner

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 21, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

DO NA LD P. AR NETT,

Petitioner-A ppellant,

v. No. 06-9005
(T.C. No. 18296-04)
C OM M ISSIO N ER OF IN TER NAL (Petition for Review)
REVENU E,

Respondent-Appellee.

OR D ER AND JUDGM ENT *

Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.

Donald P. Arnett appeals the tax court’s decision regarding his 2002

income tax liability. He argues: (1) the tax court judge was biased against him;

(2) the court denied him discovery; (3) the court improperly refused to admit his

evidence; (4) the court erred in its merits decision; (5) the court erred in refusing

to sanction counsel for the government; and (6) the court failed to address his

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
claim that the agency denied him an administrative appeal hearing. W e have

jurisdiction under IRC § 7482(a)(1), which authorizes us to review the tax court’s

decisions “in the same manner and to the same extent as decisions of the district

courts in civil actions tried without a jury.” 1 None of M r. Arnett’s arguments

establish a basis for reversing the tax court’s decision.

M r. Arnett offers no facts or evidence that call into question the

impartiality of the tax court judge. The fact the judge ruled against him on more

than one issue is insufficient to demonstrate bias or prejudice. See Liteky v.

United States, 510 U.S. 540, 555 (1994).

The tax court’s discovery, evidentiary, and sanctions determinations are all

reviewed for abuse of discretion. Wayte v. United States, 470 U.S. 598, 624

(1985) (discovery rulings); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)

(evidentiary rulings); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)

(sanctions). “Under this standard, we will not disturb a trial court’s decision

absent a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996) (citations and

1
A party appealing a tax court decision must file a notice of appeal within
ninety days of the entry of the decision. 26 U.S.C. § 7483. M r. Arnett’s notice of
appeal was postmarked September 25, 2006, the ninetieth day after entry of the
decision in this case, but it not filed in the tax court until October 2, 2006. Under
the date-of-mailing provisions of 26 U.S.C. § 7502(a), however, the notice of
appeal w as timely. See Umbach v. CIR, 357 F.3d 1108, 1111 (10th Cir. 2003).

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quotations omitted). N one of the decisions of which M r. Arnett complains show s

a clear error of judgment or conduct outside the bounds of permissible choice.

M r. Arnett’s arguments about the tax court’s decision on the merits of his

case are not persuasive, and we affirm that decision substantially for the reasons

expressed in the tax court’s June 27, 2006, opinion. Finally, while the tax court

apparently did not address M r. Arnett’s late-raised argument that he was denied

an administrative appeal, the record indicates that M r. Arnett did not request an

appeal within thirty days of the Internal Revenue Service’s preliminary letter to

him. T.C. Ex. 5-P (M r. Arnett’s M ay 10, 2004, letter responding to M arch 18,

2004, IRS letter). Thus, his request w as untimely and the Service proceeded in

accordance with regulation. See 26 C.F.R. § 601.105(d)(1) (“If the taxpayer does

not respond to the letter within 30 days, a statutory notice of deficiency will be

issued . . . .”).

M r. A rnett’s reply-brief request to submit a supplemental brief is DENIED.

The judgment of the tax court is AFFIRMED.

Entered for the Court

David M . Ebel
Circuit Judge

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