     Case: 15-60275      Document: 00513508580         Page: 1    Date Filed: 05/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                    No. 15-60275                            FILED
                                  Summary Calendar                      May 17, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
RAMON J. JEANMARIE; SHEILA A. JEANMARIE,

              Petitioners - Appellants

v.

COMMISSIONER OF INTERNAL REVENUE,

              Respondent - Appellee




                               Appeal from the Decision
                           of the United States Tax Court
                               Tax Court No. 25533-13


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       The IRS issued a notice of deficiency to Ramon J. and Sheila A.
Jeanmarie based on their failure to include Mr. Jeanmarie’s disability benefit
payments in their taxable income for tax year 2009. The Jeanmaries filed a
petition in Tax Court challenging the notice of deficiency, but the petition was
dismissed after they failed to pay the filing fee. The IRS assessed the taxes



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-60275
determined in the notice of deficiency and demanded payment. After the
Jeanmaries did not pay the assessed taxes, the IRS sent them a notice of intent
to levy. The Jeanmaries responded with a request for a collection due process
(CDP) hearing to challenge the proposed levy. In their request, they asserted
that Mr. Jeanmarie’s “[p]ension is tax exempt under section 106 and clarified
further by legislative intent which never [has] been reviewed along with other
relevant facts not reviewed.”
      The Appeals Officer, Joe Alvarado, sent the Jeanmaries a letter outlining
the CDP process and scheduling a telephone conference. When the Appeals
Officer called the Jeanmaries at the scheduled time, they were unavailable.
The Jeanmaries insisted that they were entitled to a face-to0face hearing to
challenge their underlying tax liability and that they were not required to
complete any forms or provide any requested financial information to discuss
collection alternatives.
      The IRS Office of Appeals issued a notice of determination upholding the
proposed levy. The Jeanmaries appealed the notice of determination to the
Tax Court. The Tax Court held that the Appeals Officer had not abused his
discretion in sustaining the levy because the Appeals Officer verified that the
applicable legal and procedural requirements for the levy had been met and
the Jeanmaries had not provided any evidence to dispute the Appeals Officer’s
determination that the levy properly balanced the government’s need for
collection with the legitimate concern that the collection be no more intrusive
than necessary.    The Tax Court explained that the Jeanmaries could not
contest their underlying tax liability for 2009 because they had forfeited their
opportunity to contest the notice of deficiency in the Tax Court by failing to pay
the required filing fee. The Tax Court also pointed out that the Jeanmaries
were estopped from raising the issue of whether Mr. Jeanmarie’s disability


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                                  No. 15-60275
benefit payments were taxable, because they had litigated that issue and lost
in two previous cases.
      On appeal, the Jeanmaries argue that the case was not ripe for review
because they were denied a face-to-face hearing and, therefore, the Tax Court
lacked jurisdiction; the Appeals Officer abused his discretion by failing to grant
them a face-to-face hearing; and they were denied due process.              Their
arguments have no merit.
      The only issue that the Jeanmaries sought to raise at the requested face-
to-face hearing was the taxability of Mr. Jeanmarie’s disability benefits. But
the law does not allow them to challenge their underlying tax liability in a CDP
hearing if they had a previous opportunity to do so. 26 U.S.C. § 6330(c)(2)(B).
The Jeanmaries clearly had such an opportunity when they petitioned the Tax
Court in response to the original 2009 notice of deficiency, but they forfeited
that opportunity by failing to pay the filing fee. The Jeanmaries were not
entitled to a face-to-face CDP hearing when the only argument they sought to
raise at such a hearing was a challenge to their underlying tax liability. Treas.
Reg. § 301.6330-1(d)(2) (Q&A-D6). Because the Jeanmaries failed to raise any
non-frivolous arguments and failed to provide requested documentation to
discuss collection alternatives, the Appeals Officer did not abuse his discretion
in not holding a face-to-face hearing.      The Jeanmaries received all of the
process they were due.
      The judgment of the Tax Court is AFFIRMED.
      The motion of appellant Ramon J. Jeanmarie to supplement the record
on appeal with the record from prior appeal no. 07-60971 (Tax Court No. 8197-
07) is DENIED.
      The motion of appellant Ramon J. Jeanmarie to order the Tax Court to
furnish him with a copy of the audio recording of the proceedings in this case
is DENIED.
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