NOT FOR PUBLICATION FILED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.
4 14-70712