                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 20 2010

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




                             FOR THE NINTH CIRCUIT



W. RUSSELL VAN CAMP; TERESA                      No. 09-70622
VAN CAMP,
                                                 Tax Ct. No. 3639-07L
              Petitioners,

  v.                                             MEMORANDUM *

COMMISSIONER OF INTERNAL
REVENUE,

              Respondent.



                          Appeal from a Decision of the
                             United States Tax Court
                     Diane Kroupa, Tax Court Judge, Presiding


                             Submitted July 16, 2010 **
                               Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and HART, Senior District
Judge.***

        *
             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).
       ***
             The Honorable William T. Hart, Senior United States District Judge
                                                                          (continued...)
       W. Russell and Teresa Van Camp (collectively, taxpayers) appeal from a

decision by the United States Tax Court determining that the Appeals Office did

not abuse its discretion in allowing a collection action to proceed. We affirm.

       Much of this appeal turns on Russell Van Camp’s attempt to relitigate his

tax liability for his 1993 tax year. Liability for that tax year is not, however, still

on the table. In 2000, Van Camp stipulated to his liability for his 1993 tax year,

and the Tax Court entered a decision pursuant to that stipulation that a deficiency

was due. That decision is res judicata. Comm’r v. Sunnen, 333 U.S. 591, 598

(1948).

       Live testimony was not necessary to resolve disputed facts or to contradict

the Appeals Office’s decision, as taxpayers maintain. The validity of the 1993 tax

liability (the asserted reason for the dispute) was not in issue. In addition,

taxpayers stipulated to the authenticity of the decision letter. Further, review is

limited to the administrative record. See Keller v. Comm’r, 568 F.3d 710, 718 (9th

Cir. 2009). Finally, to the extent taxpayers now claim they could have presented

evidence about the timely assessment of taxes, the issue is waived for failure to

raise it in the Collection Due Process or Tax Court proceedings.




(...continued)
for the Northern District of Illinois, sitting by designation.

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AFFIRMED.




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