                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 13, 2011
                    UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 ANTHONY CHRISTOPHOR
 AMESQUITA,
                                                        No. 11-9004
               Petitioner - Appellant,
          v.                                       (T.C. No. 11644-10L)
                                                 (United States Tax Court)
 COMMISSIONER OF INTERNAL
 REVENUE,

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Anthony C. Amesquita (Taxpayer) challenged a lien filed by the Internal

Revenue Service (IRS) by requesting a collection-due-process (CDP) hearing

before the IRS Office of Appeals. The office sustained the notice of lien and

Taxpayer filed a petition in Tax Court. The Commissioner of the IRS (the



      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Commissioner) moved for summary judgment. The Tax Court, noting that

Taxpayer’s response to the motion failed to address its merits, granted summary

judgment for the Commissioner. Taxpayer appeals. We have jurisdiction under

26 U.S.C. § 7482(a)(1) and affirm. Contrary to Taxpayer’s assertions, the Tax

Court presented him with an adequate opportunity to present his case and the

Office of Appeals’ rejection of his proposed installment agreement did not

deprive him of due process.

I.    IRS COLLECTION PROCEDURES

      If a taxpayer neglects or refuses to pay his taxes after assessment, notice,

and demand, a lien arises in favor of the United States “upon all the property and

rights to property” belonging to the taxpayer. 26 U.S.C. § 6321; see Drye v.

United States, 528 U.S. 49, 55 (1999) (“[T]o satisfy a tax deficiency, the

Government may impose a lien on any ‘property’ or ‘rights to property’ belonging

to the taxpayer.”). Before the Commissioner may levy on the taxpayer’s property,

however, he must notify the taxpayer of the right to request a CDP hearing before

the Office of Appeals. See 26 U.S.C. § 6320(a), (b); id. § 6330(a), (b); T.D.O.

No. 150-10 (Apr. 22, 1982) (delegating to Commissioner the enforcement

authority of the Secretary of the Treasury under Internal Revenue Code). The

settlement officer (also known as the appeals officer) must determine whether the

“proposed collection action balances the need for the efficient collection of taxes

with the legitimate concern of the [taxpayer] that any collection action be no more

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intrusive than necessary.” 26 U.S.C. § 6330(c)(3)(C); see Living Care

Alternatives of Utica, Inc. v. United States, 411 F.3d 621, 624–25 (6th Cir. 2005).

At the CDP hearing a delinquent taxpayer can submit, among other collection

alternatives, a proposed installment-payment plan to satisfy the tax liability. See

26 U.S.C. § 6330(c)(2)(A)(iii).

      Ordinarily, as here, the Commissioner “has the discretion to accept or reject

any proposed installment agreement.” 26 C.F.R. § 301.6159-1(c)(i). Acceptance

or rejection of a proposed installment plan is to be “based on the taxpayer’s

current financial condition.” Taylor v. Comm’r, T.C. Memo 2010-213, 2010 WL

3835744, at *3 (Sept. 30, 2010). The IRS computes the taxpayer’s ability to

make monthly payments by subtracting his monthly expenses from his monthly

income. To ensure consistency in the computation of expenses, the Internal

Revenue Manual provides national and local standards for basic needs, such as

groceries and household expenses, medical expenses, housing, and transportation.

See Financial Analysis Handbook, Internal Revenue Manual (IRM) ¶ 5.15.1.1(5).

A deviation from the expense standards may be allowed if the taxpayer can

demonstrate that the standard amount is inadequate to provide for his basic living

expenses. See IRM ¶ 5.15.1.7(5). After an adverse decision at a CDP hearing,

the taxpayer has 30 days to appeal to the Tax Court. See 26 U.S.C. § 6330(d)(1).




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II.   TAXPAYER’S PROCEEDINGS

      On October 6, 2009, the IRS sent Taxpayer a “Notice of Federal Tax Lien

Filing” for unpaid income-tax liabilities for 2000, 2001, 2002, 2003, 2005, 2006,

and 2008, totaling more than $73,000. He filed a timely request for a CDP

hearing, and a settlement officer in the Office of Appeals sent him a letter

scheduling his hearing (by telephone) for April 8, 2010. The letter informed him

that the settlement officer could not consider alternative collection methods, such

as an installment agreement, unless he filed all required tax returns and submitted

a completed Collection Information Statement for Wage Earners and Self-

Employed Individuals (Form 433-A), along with required documentation, by

March 24.

      On March 24 Taxpayer faxed the Office of Appeals a completed Form

433-A with attached financial information. The submissions reflected a monthly

income of $3,950 and expenses of $2,300, composed of $800 for food and

clothing, $1,200 for housing and utilities, $200 for vehicle transportation, and

$100 for out-of-pocket health-care. This left him a net disposable income of

$1,650.

      During the April 8 telephonic hearing, however, the settlement officer

informed Taxpayer that she had computed from his financial information that he

could pay $2,167 per month. She calculated this figure from his stated monthly

income and expenses, except that she disallowed expenses exceeding the Internal


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Revenue Manual’s guidelines for a household of one in Dona Ana County, New

Mexico. The guidelines’ monthly allocations are $526 for food, clothing, and

miscellaneous expenses; $997 for housing and utilities; and $60 for out-of-pocket

health-care costs, which totaled $517 less than Taxpayer claimed for those

expenses. Although the settlement officer notified Taxpayer that she might be

able to consider additional out-of-pocket expenses if he could substantiate them,

he did not follow up on this offer. Nor did he challenge the propriety of the tax

lien or the use of the standard tables to compute his monthly disposable income.

Instead, he stated simply that he could pay $1,200 a month, $450 less than what

his own Form 433-A indicated as his monthly disposable income.

      On April 22, 2010, the Office of Appeals sent Taxpayer a notice of

determination sustaining the filing of the tax lien and the collection action. It

said that “consideration of a proposed collection alternative of an installment

agreement or other less intrusive methods of collection [was] not possible.” R.,

Doc. 8, Ex. A attach. 4.

      Taxpayer filed a timely petition in the Tax Court challenging the notice of

determination. He argued that it was not feasible for him to pay $2,200 per month,

and that he would not have the IRS “[d]ictate [his] standard of living.” The

Commissioner answered the petition, and then moved for summary judgment.

Taxpayer filed a one-page, two-sentence response stating: “I do not think it is my

best interest to dismiss my case. I object to the dismal [sic] motion.” Id., Doc.


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10. In a one-page decision noting that Taxpayer had not “addressed the merits of

the motion,” the Tax Court granted the summary-judgment motion and ordered

that the Commissioner may proceed with the collection action. Id., Doc. 11.

III.   ISSUES ON APPEAL

       As best we can understand the pro se Taxpayer’s brief in this court, he is

advancing two arguments why the Tax Court erred in upholding the Office of

Appeals’ determination. He first argues that the Tax Court “did not look at all

[the] information pertaining to [his] case” and did not give him “an opportunity to

present information.” Aplt. Br. at 4. This argument is plainly wrong. Rather than

properly responding to the Commissioner’s motion for summary judgment, he just

punted. He provides no reason why he could not have presented his best

arguments to the Tax Court.

       Second, Taxpayer seems to argue that the Office of Appeals violated his

right to due process because the dispute had continued for more than four years

and his offer of compromise was not processed in the same manner as an earlier

offer. But because no such argument was raised before the Tax Court, we need not

address it. See Sorbo v. United Parcel Serv., 432 F.3d 1169, 1175 (10th Cir. 2005)

(Because the “plaintiff never raised his . . . objections . . . below, despite ample

opportunity to do so,” his argument was waived. (brackets and internal quotation

marks omitted)). In any event, our above discussion of the proceedings after the




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notice of lien amply demonstrates that Taxpayer was treated fairly and within the

boundaries of due process.

IV.   CONCLUSION

      We AFFIRM the decision of the Tax Court.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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