Konn v. Commissioner , 479 F. App'x 757 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BEVERLY KONN, No. 10-73697
Petitioner - Appellant, Tax Ct. No. 5050-09L
v.
MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Beverly Konn appeals pro se from the Tax Court’s summary judgment
permitting the Commissioner of Internal Revenue (“Commissioner”) to proceed
with an action to collect her federal income tax liability for tax year 2004. We
*
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).
have jurisdiction under 26 U.S.C. § 7482(a). We review de novo. Miller v.
Comm’r, 310 F.3d 640, 642 (9th Cir. 2002). We affirm.
The Tax Court properly determined that Konn was precluded from
challenging her tax liability for tax year 2004 because she 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”). Contrary to
her contention on appeal, Konn failed to raise a genuine dispute of material fact as
to whether she did not receive the notice of deficiency because she did not submit
any evidence contradicting the postal form 3877 submitted by the Commissioner.
See United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984) (holding that postal
form 3877 is highly probative and is sufficient, in the absence of contrary
evidence, to show that the notice of deficiency was properly made); see also
Hagner v. United States, 285 U.S. 427, 430 (1932) (a properly mailed letter carries
with it a presumption of receipt).
We do not consider issues that were not raised in the opening brief. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
2 10-73697