Klingenberg v. Commissioner , 551 F. App'x 354 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELDO KLINGENBERG, No. 12-70441
Petitioner - Appellant, Tax Ct. No. 15355-09L
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Eldo Klingenberg appeals pro se from the Tax Court’s judgment permitting
the Commissioner of Internal Revenue (“Commissioner”) to proceed with an
action to collect his federal income tax liability for tax year 2005. We have
jurisdiction under 26 U.S.C. § 7482(a). We review de novo the Tax Court’s legal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conclusions and for clear error its findings of fact. Johanson v. Comm’r, 541 F.3d
973, 976 (9th Cir. 2008). We affirm.
The Tax Court properly determined that Klingenberg was precluded from
challenging his tax liability for tax year 2005 because he received notice of the
deficiency but failed to petition the tax court for a deficiency hearing. See 26
U.S.C. § 6330(c)(2)(B) (permitting challenge to the underlying tax liability if the
taxpayer “did not receive any statutory notice of deficiency for such tax liability or
did not otherwise have an opportunity to dispute such tax liability”); Hagner v.
United States, 285 U.S. 427, 430 (1932) (a properly mailed letter carries with it a
presumption of receipt); see also United States v. Zolla, 724 F.2d 808, 810 (9th
Cir. 1984) (postal form 3877 is highly probative and sufficient, in the absence of
contrary evidence, to show that the notice of deficiency was properly made).
We reject Klingenberg’s contentions concerning the proper scope of the
evidence, false or contradictory witness testimony, and the allegedly improper
exclusion of exhibits.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
AFFIRMED.
2 12-70441