                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              December 17, 2008
                               No. 08-13329                     THOMAS K. KAHN
                           Non-Argument Calendar                    CLERK
                         ________________________

                            Agency No. 21192-06

WALTER OLIVER MELVIN,



                                                               Petitioner-Appellant,

                                    versus

COMMISSIONER OF IRS,

                                                           Respondent-Appellee.


                         ________________________

                    Petition for Review of a Decision of the
                            United States Tax Court
                         _________________________

                             (December 17, 2008)

Before DUBINA, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Walter Oliver Melvin, proceeding pro se, appeals the U.S. Tax
Court’s final decision in favor of the Commissioner of the Internal Revenue

Service (“Commissioner” or the “IRS”) on his petition for redetermination of

deficiency. On appeal, Melvin first argues that he was entitled to deduct $6,000

from his 2003 income tax returns because his 1985 divorce decree ordered that he

pay alimony, through the seizure of property to be credited at the rate of $500 per

month, to his ex-spouse. He asserts that, because he was required to pay all of the

alimony in advance, he should thus be allowed to claim a deduction on his 2003

tax return. Second, Melvin argues that he was denied due process of law because

his trial before the Tax Court was cut short before he was allowed to hear the

position of, and cross-examine, the IRS.

                                 I. Tax Deficiency

      We review a Tax Court’s conclusions of law de novo and its factual findings

for clear error. Creel v. Comm’r, 419 F.3d 1135, 1139 (11th Cir. 2005). “The

Commissioner’s determination of a deficiency is presumed correct, and the

taxpayer has the burden of proving it is incorrect.” Webb v. Comm’r, 872 F.2d

380, 381 (11th Cir. 1989).

      Section 215 of the Internal Revenue Code (“I.R.C.”) states, “[i]n the case of

an individual, there shall be allowed as a deduction an amount equal to the alimony

or separate maintenance payments paid during such individual’s taxable year.”

I.R.C. § 215(a), 26 U.S.C. § 215(a). It further states that alimony means any
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alimony payment as defined in I.R.C. § 71(b) “which is includible in the gross

income of the recipient under section 71.” I.R.C. § 215(b), 26 U.S.C. § 215(b).

      Section 71(b) of the I.R.C. states:

      (1) In general. -- The term “alimony or separate maintenance
      payment” means any payment in cash if --

             (A) such payment is received by (or on behalf of) a spouse
             under a divorce or separation instrument,

             (B) the divorce or separation instrument does not designate
             such payment as a payment which is not includible in gross
             income under this section and not allowable as a deduction
             under section 215,

             (C) in the case of an individual legally separated from his
             spouse under a decree of divorce or of separate maintenance,
             the payee spouse and the payor spouse are not members of the
             same household at the time such payment is made, and

             (D) there is no liability to make any such payment for any
             period after the death of the payee spouse and there is no
             liability to make any payment (in cash or property) as a
             substitute for such payments after the death of the payee
             spouse.

I.R.C. § 71(b), 26 U.S.C. § 71(b).

      “If [a] statute’s meaning is plain and unambiguous, there is no need for

further inquiry. The plain language is presumed to express congressional intent

and will control a court’s interpretation.” United States v. Fisher, 289 F.3d 1329,

1338 (11th Cir. 2002).



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      Because in 2003 Melvin admittedly made no alimony payments, as defined

in the I.R.C., we conclude that he was not allowed to claim an alimony deduction

on his 2003 income tax returns. Melvin was thus unable to meet his burden to

show that the Commissioner erred in Melvin’s deficiency determination, and the

Tax Court properly entered a decision in the Commissioner’s favor.

                                   II. Due Process

      The Due Process Clause of the Fifth Amendment provides that “[n]o person

shall . . . be deprived of life, liberty, or property, without due process of law.” U.S.

Const. amend. V. Rudimentary due process includes reasonable notice and an

opportunity to rebut the charges and be heard. American Druggists Ins. Co., Inc. v.

Bogart, 707 F.2d 1229, 1237 (11th Cir. 1983).

      The IRS made its arguments known to Melvin in both its answer to his

petition, and its pretrial memorandum. At Melvin’s trial before the Tax Court,

Melvin and the Commissioner had the opportunity to challenge each other’s

arguments. Furthermore, Melvin and the Commissioner prepared memoranda

addressing their arguments raised during trial. We thus conclude from the record

that Melvin was afforded the opportunity to be heard, both at his trial and in a

memorandum of law. See id. Accordingly, his due process argument fails.

      For the above-stated reasons, we affirm the Tax Court’s judgment.

      AFFIRMED.
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