Burningham v. Commissioner

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICKY BURNINGHAM, Nos. 14-70712
14-70713
Petitioner-Appellant,
Tax Ct. Nos. 24619-12L
v. 21372-12L

COMMISSIONER OF INTERNAL
REVENUE, MEMORANDUM*

Respondent-Appellee.

Appeals from Decisions of the
United States Tax Court

Submitted January 18, 2017**

Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

In these consolidated appeals, Ricky Burningham appeals pro se from the

Tax Court’s decisions upholding federal income tax liability for tax years 2003

through 2008. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de

novo whether the Tax Court had jurisdiction, MK Hillside Partners v. Comm’r,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
826 F.3d 1200, 1204 (9th Cir. 2016), and for an abuse of discretion a dismissal for

failure to prosecute, Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988). We

affirm.

Appeal No. 14-70713 (Tax Years 2003-2007)

The Tax Court properly exercised jurisdiction over Burningham’s case when

it reviewed the Commissioner’s determination to proceed by levy to collect unpaid

federal income taxes. See 26 U.S.C. § 6330(d) (conferring jurisdiction to the Tax

Court to review levy determinations sustained by the Internal Revenue Service

Office of Appeals (“Office of Appeals”)); T.C. R. 330(b) (Tax Court shall have

jurisdiction over a levy action when the conditions of § 6330(d) have been

satisfied). We reject as without merit Burningham’s contention that the Tax Court

exceeded the proper scope of review under § 6330(d), as the Tax Court did not

consider any evidence outside of the administrative record in existence at the time

the Office of Appeals sustained the Commissioner’s determination to proceed with

collecting unpaid income taxes.

Appeal No. 14-70712 (Tax Year 2008)

The Tax Court did not abuse its discretion in dismissing Burningham’s

petition for failure to prosecute because Burningham failed to appear at trial or

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offer any valid excuse for his absence. See Noli, 860 F.2d at 1527 (noting that

“dismissal for failure properly to prosecute will normally arise where a party fails

to appear at trial”); see also T.C. R. 123(a), (b) (Tax Court may dismiss a case and

enter a decision against a petitioner where the petitioner fails to prosecute properly

or fails to proceed as required by the Tax Court); T.C. R. 149(a) (Tax Court may

dismiss a case for failure to prosecute where the petitioner’s absence from trial is

unexcused); Larsen v. Comm’r, 765 F.2d 939, 941 (9th Cir. 1985) (Tax Court has

discretion to dismiss a petition for failure to comply with Tax Court Rules).

The Tax Court did not err by returning unfiled Burningham’s motion to

dismiss and objections to the Commissioner’s summary judgment motion because

the documents did not comply with Tax Court Rule 54. Burningham did not

attempt to refile the motion and the objections in compliance with the Tax Court

Rules, and neither these documents, nor Burningham’s notice of nonappearance

challenging the Tax Court’s jurisdiction, constitute acceptable substitutes for his

appearance at trial.

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 Burningham’s request for judicial notice in Appeal No. 14-70712, filed on

May 6, 2014, is granted.

14-70713: AFFIRMED.

14-70712: AFFIRMED.

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