                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 14, 2016
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court



 MICHAEL E. LUNNON,

             Petitioner - Appellant,
                                                       No. 15-9007
 v.                                              (Tax. Ct. No. 13245-12L)
                                                 (United States Tax Court)
 COMMISSIONER OF INTERNAL
 REVENUE,

             Respondent - Appellee.


                          ORDER AND JUDGMENT *


Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.


      Michael Lunnon, proceeding pro se, appeals an order of the United States

Tax Court affirming liability for unpaid employment and unemployment taxes.

Exercising jurisdiction under 26 U.S.C. § 7482(a)(1), we affirm.

      Prior to 2009, Lunnon owned and operated a small business as a sole




      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
proprietorship. 1 Believing Lunnon had failed to pay employment and

unemployment taxes since 2005, the Internal Revenue Service (“IRS”) prepared

the required returns on his behalf. The IRS sent these returns to Lunnon, but he

did not respond. Thirty days later, the IRS processed the returns and assessed the

tax liability. The IRS then notified Lunnon of its intent to impose a levy and

federal tax lien to recover the taxes owed.

      Lunnon requested a hearing, which was held before the IRS Appeals Office.

The Appeals Office sustained the proposed collection actions. Lunnon appealed

to the United States Tax Court, arguing in part that the IRS had failed to present

him with documents supporting its claim against him, and objecting to the

admission of new evidence on appeal. The IRS moved to remand the case to the

Appeals Office in order to address these concerns. Remand was granted so that

Lunnon might have an opportunity to review the documents supporting the IRS’s

claim—documents that would become a part of the record upon remand. Lunnon

did not oppose the motion. On remand, Lunnon was provided those documents,

as well as other documents the IRS had obtained while the case was pending

before the Tax Court. He was given an opportunity to rebut the newly added

evidence, but failed to do so. Accordingly, the Appeals Office again sustained

the proposed collection activities. Lunnon again timely appealed to the Tax

      1
        In 2009, this business was transferred to LG Kendrick, LLC, of which
Lunnon was the sole member. Two other appeals are pending before this court
concerning the LLC’s liability for similar unpaid taxes.

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Court, which affirmed the Appeals Office. Lunnon now appeals to this Court.

       Lunnon argues on appeal that the Tax Court erred in considering evidence

that was not in the record when the Appeals Office made its first determination,

i.e., before remand. This argument is meritless. As indicated above, the very

purpose of the remand to the Appeals Office was to supplement the record with

evidence supporting the IRS’s action—a purpose Lunnon did not object to at the

time. Remanding for such purpose is not only a common practice by the Tax

Court, see, e.g., Hoyle v. Comm’r,136 T.C. 463, 468–69 (2011), it is “the proper

course” where “the record before the agency does not support the agency action,”

Weight Loss Healthcare Ctrs. of Am. v. Office of Pers. Mgmt., 655 F.3d 1202,

1212 (10th Cir. 2011) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729,

744 (1985)). The decision that the Tax Court ultimately reviewed—the

supplemental determination of the Appeals Office—was decided based on the

record as supplemented on remand. Accordingly, it was appropriate for the Tax

Court to consider that same evidence on review.

      We affirm.

                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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