                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 24 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GLENN LITWAK,                                    No. 10-70787

               Petitioner - Appellant,           Tax Ct. No. 21122-07L

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Glenn Litwak appeals from the Tax Court’s decision after a bench trial,

upholding the Commissioner of Internal Revenue’s (“Commissioner”)

determination to reject Litwak’s offer-in-compromise and collect on his unpaid tax




          *
             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).
liabilities for tax years 2000, 2001, and 2002. We have jurisdiction under 26

U.S.C. § 7482(a)(1). We review de novo the Tax Court’s conclusions, and for an

abuse of discretion the Commissioner’s rejection of an offer-in-compromise.

Keller v. Comm’r, 568 F.3d 710, 716 (9th Cir. 2009). We affirm.

      The Commissioner did not abuse his discretion in rejecting as inadequate

Litwak’s offer-in-compromise because Litwak failed to establish that special

circumstances existed to support his offer to pay less than the Internal Revenue

Service (“IRS”) could collect if he filed for bankruptcy. See id. at 717-18 & n.8

(listing “special circumstances” that must be present for IRS to accept an offer that

is less than the taxpayer’s “reasonable collection potential”); see also Fargo v.

Comm’r, 447 F.3d 706, 710-12 (9th Cir. 2006) (IRS has discretion to decide

whether to reject an offer-in-compromise after evaluating all facts and

circumstances). Moreover, the Commissioner’s error in determining which of

Litwak’s outstanding tax liabilities would be dischargeable in bankruptcy was

harmless because Litwak failed to show that the error affected the determination

that he could still afford to pay more than his offer. See Keller, 568 F.3d at 718

(taxpayers relying on miscalculations must demonstrate that, allowing for the

errors, their offers do not remain below their ability to pay).




                                           2                                    10-70787
      Litwak’s remaining contentions, including arguments raised for the first time

on appeal, are unpersuasive. See id. (reviewing court is confined to the record at

the time the IRS rendered its decision); McFarland v. Guardsmark, LLC, 588 F.3d

1236, 1236 (9th Cir. 2009) (order) (issues raised for the first time on appeal need

not be considered).

      Litwak’s request for judicial notice is denied.

      AFFIRMED.




                                          3                                    10-70787
