                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                           MAR 22 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

WAYNE ROBERT RISLEY; NANETTE                     No. 10-70656
RISLEY,
                                                 Tax Ct. No. 10857-05s
              Petitioners,

  v.                                             MEMORANDUM *

COMMISSIONER OF INTERNAL
REVENUE,

              Respondent.



                             Appeal from a Decision of the
                               United States Tax Court

                              Submitted March 8, 2012 **
                                 Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.

       Because the Risleys elected to bring this case as a small tax case, we lack

jurisdiction to review the decision of the Tax Court. See 26 U.S.C. § 7463(b); see




        *
             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).
also Ballard v. Comm’r, 639 F.2d 486 (9th Cir. 1980) (per curiam). We need not

consider the question whether there are circumstances in which we would have

jurisdiction over a due process claim because the Risleys’ claim here is based on

the assertion that the rules governing small tax cases do not allow for summary

judgment, which is incorrect. See Tax Ct. R. Prac. & Proc. 121, 170.

DISMISSED.




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