                                                                           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                            NOT FOR PUBLICATION                             JUL 05 2012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.


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