Joseph v. Commissioner , 691 F. App'x 866 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL DAVID JOSEPH, No. 16-70006
Petitioner-Appellant, Tax Ct. No. 23968-13
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Joel David Joseph appeals pro se from the Tax Court’s summary judgment
upholding the Commissioner of the Internal Revenue’s determination of deficiency
for the 2010 tax year. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo. Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir. 2002). We affirm.
The Tax Court properly granted summary judgment because Joseph failed to
raise a genuine dispute of material fact as to whether the levy of funds from his
individual retirement account did not constitute a distribution that is taxable gross
income. See 26 U.S.C. § 408(d)(1) (subject to certain exceptions, “any amount
paid or distributed out of an individual retirement plan shall be included in gross
income by the payee or distribute . . . .”).
The Tax Court did not abuse its discretion in denying Joseph’s motion for
leave to amend his petition because the proposed amendment would be been futile.
See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment
can, by itself, justify the denial of a motion for leave to amend.”); Kelley v.
Comm’r, 877 F.2d 756, 760 (9th Cir. 1989) (standard of review), overruled on
other grounds by Bufferd v. Comm’r, 506 U.S. 523 (1993).
We do not consider issues relating to the underlying tax levy that Joseph
failed to raise in a collection due process hearing. See 26 C.F.R. § 301.6330–
1(f)(2) Q & A F3.
AFFIRMED.
2 16-70006