             Case: 13-10550    Date Filed: 08/21/2013   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       __________________________

                              No. 13-10550
                          Non-Argument Calendar
                       __________________________

                              Agency No. 15480-11

CARLES ROULETT,
JENO LUCKETT,

                                                           Petitioners-Appellants,

                                     versus

COMMISSIONER OF IRS,

                                                            Respondent-Appellee.
                       __________________________

                   Petition for Review of a Decision of the
                                U.S. Tax Court
                       __________________________

                               (August 21, 2013)

Before HULL, JORDAN, and COX, Circuit Judges.

PER CURIAM:

     Carles Roulett and Jeno Luckett (collectively, the Petitioners), proceeding

pro se, appeal the tax court’s dismissal of their petition challenging a tax
                Case: 13-10550      Date Filed: 08/21/2013      Page: 2 of 6


deficiency for the 2009 tax year. They also challenge the tax court’s denial of their

motion to vacate the order dismissing their petition.

       In June 2011, Petitioners received a notice of deficiency charging that they

owed $488 in additional taxes for the 2009 tax year. The Petitioners filed a

petition seeking redetermination of the tax deficiency. But after they failed to

appear for trial, the tax court dismissed their case for lack of prosecution. The

Petitioners filed a motion to vacate the dismissal, which the court denied.

       We read pro se briefs liberally, see Powell v. Lennon, 914 F.2d 1459, 1463

(11th Cir. 1990), but we find it difficult to untangle the Petitioners’ arguments on

appeal. After careful review of their initial and reply briefs, we understand the

Petitioners to make three arguments: (1) the tax court erred in dismissing their

petition for lack of prosecution and denying their motion to vacate; (2) the

Commissioner wrongly credited their 2009 overpayment to their 2004 tax liability;

and (3) the Commissioner wrongly credited their 2011 overpayment to liabilities

owed from 2005, 2007, and 2008.1




       1
         Because the Petitioners do not brief these issues, we deem abandoned the Petitioners’
contentions that the tax court denied them procedural due process and that the Commissioner
should be “collaterally estop[ped]” from pursuing subsequent proceedings. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
                                               2
                Case: 13-10550       Date Filed: 08/21/2013      Page: 3 of 6


       First, we review the tax court’s dismissal for lack of prosecution for an

abuse of discretion. Crandall v. Comm’r, 650 F.2d 659, 660 (5th Cir. Unit B July

1981). 2 Likewise, we review the court’s denial of a motion to vacate for an abuse

of discretion. Bragg v. Comm’r, 856 F.2d 163, 166 (11th Cir. 1988). The tax court

may dismiss a case at any time if a petitioner fails to prosecute his case or comply

with the tax court’s orders. Tax Ct. R. 123(b).

       The tax court did not abuse its discretion in dismissing the petition because

the Petitioners neither prosecuted their case nor complied with the court’s orders.

The Petitioners filed their petition on June 30, 2011. The tax court informed them

on April 26, 2012, that their case was set for trial on October 1, 2012, and warned

the Petitioners that the “failure to appear may result in dismissal of the case and

entry of decision against you.” (R.1-14.) The court also told them that they must

file a pretrial memorandum. Despite having more than five months to prepare for

trial or request a continuance, the Petitioners failed to appear on October 1. That

day, the tax court called their case not once, but twice—in the morning and the

afternoon—and the Petitioners failed to appear both times. The Petitioners neither

explained to the tax court, nor explain to us on appeal, why they did not appear.




       2
          Decisions of the former Fifth Circuit rendered before October 1, 1981, bind us. Bonner
v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
                                                  3
              Case: 13-10550      Date Filed: 08/21/2013   Page: 4 of 6


And, they apparently never filed their pretrial memorandum as the tax court

required. The Petitioners also stipulated to owing the $488 for the 2009 tax year.

(R.1-23 Ex. A ¶ 13.) For these reasons, we cannot conclude that the tax court

abused its discretion in dismissing the petition or in denying the Petitioners’

motion to vacate the dismissal.

      Second, the Petitioners contend that they are entitled to a refund—their

overpayment in 2009 minus the $488 deficiency. But the Commissioner credited

the overpayment to a 2004 tax liability of Petitioners. According to the Petitioners,

the Commissioner improperly credited the overpayment to the 2004 liability

because (1) the Commissioner never sent a notice of deficiency for the 2004 tax

year and (2) the collection of the overpayment was time-barred by 26 U.S.C.

§ 6501. Instead, they argue, the 2009 overpayment should be applied to the $488

deficiency, and they should receive a refund of the balance.

      We are not persuaded.        The Commissioner acted within his statutory

authority when he credited the overpayment against the 2004 liability. See 26

U.S.C. § 6402(a). First of all, the Commissioner was not required to send a notice

of deficiency for the 2004 tax year. The Commissioner must send a notice of

deficiency only if he “determines that there is a deficiency.”            Id. § 6212(a)

(emphasis added). A deficiency generally results from a tax return understating the


                                          4
               Case: 13-10550     Date Filed: 08/21/2013   Page: 5 of 6


taxpayer’s liability. See Murray v. Comm’r, 24 F.3d 901, 903 (7th Cir. 1994).

Here, the 2004 liability arose from the Petitioners’ failure to pay taxes, not any

understatement of income on their return. (See R.1-23 Ex. 3-J.) Nor does 26

U.S.C. § 6501—the applicable statute of limitations—bar the collection of the

2009 overpayment. Any tax must be assessed within three years. 26 U.S.C. §

6501(a).    And the collection of that tax must occur within ten years of the

assessment. Id. § 6502(a)(1). The Petitioners filed their 2004 tax return on May 8,

2006, and the Commissioner assessed the tax liability on that same day. (R.1-23

Ex. 3-J.)     Then in February 2011, the Commissioner collected the 2009

overpayment and applied it towards the 2004 liability. So, both the assessment and

the collection were within the applicable time periods.

      Finally, to the extent that the Petitioners contend that the Commissioner

wrongly applied an overpayment from the 2011 tax year to their tax liabilities for

2004, 2005, 2007, and 2008, the tax court lacked jurisdiction to consider that

contention because the Petitioners only challenge the 2009 deficiency in their

petition. See 26 U.S.C. § 6213(a) (the tax court only has jurisdiction to review

deficiency that is the subject of a timely petition).




                                            5
           Case: 13-10550       Date Filed: 08/21/2013      Page: 6 of 6


AFFIRMED. 3




3
    The Petitioners’ Motion for Leave to File an Interlocutory Injunction is DENIED.
                                          6
