  09-3247-ag
  David Harris Sher & Catherine Gail Nemser v. Commissioner of Internal Revenue


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
  RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
  SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
  FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
  CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
  EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
  “SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST SERVE A COPY OF IT ON ANY
  PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for the Second Circuit, held
  at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
  New York, on the 18th day of June, two thousand ten.

  PRESENT:
              RALPH K. WINTER,
              PETER W. HALL,
                     Circuit Judges,
              MIRIAM GOLDMAN CEDARBAUM,*
                     District Judge.
  __________________________________________

  David Harris Sher, Catherine Gail Nemser,

                           Petitioners-Appellants,

                  v.                                                         09-3247-ag

  Commissioner of Internal Revenue,

                    Respondent-Appellee.
  ___________________________________________

  FOR APPELLANT:                   David Harris Sher and Catherine Gail Nemser, pro se, New York,
                                   New York.

FOR APPELLEE:                  John A. DiCicco, Acting Assistant Attorney General; Deborah K.

          *
           Miriam Goldman Cedarbaum, of the United States District Court for the Southern
  District of New York, sitting by designation.
                               Snyder, Kathleen E. Lyon, Attorneys, Tax Division, United States
                               Department of Justice, Washington, D.C.

       Appeal from a judgment of the United States Tax Court (Panuthos, S.T.J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the tax court be AFFIRMED.

       David Harris Sher and Catherine Gail Nemser, pro se, appeal from the tax court's order

sustaining the Internal Revenue Service’s (“IRS”) proposed levies against Appellants. We

assume the parties’ familiarity with the facts and procedural history.

       As an initial matter, Appellants have abandoned their claim that the IRS failed to timely

notify them of the lien filing because they did not raise this issue in their appellate brief. See

LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (deeming claim not raised on

appeal by pro se litigant to be abandoned).

        This Court reviews a tax court's conclusions of law de novo, its factual findings for clear

error, and its application of its own procedural rules for abuse of discretion. See Sunik v.

Comm'r, 321 F.3d 335, 337 (2d Cir. 2003); Madison Recycling Assocs. v. Comm'r, 295 F.3d 280,

285 (2d Cir. 2002); I.R.C. § 7482(a)(1) (“The United States Courts of Appeals . . . shall . . .

review the decisions of the Tax Court . . . in the same manner and to the same extent as decisions

of the district courts in civil actions tried without a jury . . ..”). When reviewing a case that

arises from a collection-due-process hearing before the IRS Office of Appeals, this Court will

“review the Appeals Office's determinations for abuse of discretion where the underlying

liability is not at issue and de novo when it is.” See Salazar v. Comm'r, 338 F. App’x 75, 77 (2d

Cir. 2009) (citing Robinette v. Comm'r, 439 F.3d 455, 462 (8th Cir. 2006), and Living Care

Alternatives of Utica, Inc. v. United States, 411 F.3d 621, 625, 628-31 (6th Cir. 2005)).

       Before the IRS imposes a levy, it must provide notice to the taxpayer of his right to

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request a collection-due-process hearing before the IRS Office of Appeals. See I.R.C. § 6320.

As part of the hearing, the Appeals Officer is to verify “that the requirements of any applicable

law or administrative procedure have been met.” See I.R.C. § 6330(c)(1). The taxpayer may

raise a spousal defense, challenge the appropriateness of the collection action, propose a

collection alternative, or raise any other relevant issue pertaining to the unpaid tax or proposed

levy. See § 6330(c)(2)(A). However, the taxpayer may challenge the underlying tax liability

only if he did not receive a statutory notice of deficiency or have any other opportunity to

dispute the liability. See § 6330(c)(2)(B). The taxpayer may not raise any issue raised and

considered in a previous collection-due-process hearing or any other previous administrative or

judicial proceeding in which the taxpayer participated meaningfully. See § 6330(c)(4). The

Appeals Officer's determination must take into consideration the verification required by

§ 6330(c)(1), the issues raised by the taxpayer, and whether the “proposed collection action

balances the need for the efficient collection of taxes with the legitimate concern of the person

that any collection action be no more intrusive than necessary.” See § 6330(c)(3).

       For purposes of abating interest and penalties on account of error or delay on the part of

the IRS, “error or delay shall be taken into account only if no significant aspect of such error or

delay can be attributed to the taxpayer involved.” See I.R.C. § 6404(e)(1)(B). The error or delay

on the part of the IRS must be “unreasonable” in order for the taxpayer to qualify for abatement

of interest or penalties. See § 6404(e)(1).

       In this case, the tax court did not err in finding that the IRS did not abuse its discretion in

refusing to abate the interest and penalties on Appellants’ unpaid tax liabilities. As an initial

matter, because Appellants did not contest the underlying liability in their collection-due-process

proceeding before the IRS Office of Appeals, they were entitled to review of the Appeals

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Officer's findings for abuse of discretion, and not de novo review, as they contend, although it

appears that they would not be entitled to any relief from this Court under either standard of

review. The tax court properly found that the IRS's error in refunding the $70,000 payment

Appellants allegedly intended to make for the 1998 tax year, received in 1999 and credited

towards the 1999 tax year, was not unreasonable because the payment was submitted separately

from their request for an extension of time to file a 1998 tax return. The tax court also found no

reliable evidence that the IRS received and processed a 1998 tax return for Appellants prior to

February 2004. Appellants cite no authority for their contention that the IRS was required to

inform them that it had not received their 1998 tax return when they questioned the $70,000

refund for the 1999 tax year. They have acknowledged being aware that their income for the

1999 tax year did not qualify them for a $70,000 refund when they received it in November

2000, and that they failed to request that the IRS apply the $70,000 overpayment to the 1998 tax

year. Contrary to Appellants’ assertion that their tax preparer's affidavit constituted proof that

they filed their tax return for the 1998 tax year in 1999, the tax court properly found that the

affidavit constitutes at most only proof that the return was prepared in 1999, not that it was filed

in that year.

        We have considered all of Appellants’ remaining claims and find them to be without

merit. Accordingly, the judgment of the tax court is AFFIRMED.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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