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

                                                 FILED
                                                                            May 29, 2009

                                     No. 08-60974                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MARTIN NITSCHKE

                                                   Petitioner-Appellant
v.

COMMISSIONER OF INTERNAL REVENUE

                                                   Respondent-Appellee




                      Appeal from the United States Tax Court
                                USTC No. 696-07L


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
              Petitioner-appellant Martin Nitschke, proceeding pro se, appeals the
United States Tax Court’s denial of a motion to vacate its order and decision
sustaining the determinations made by the Internal Revenue Service Appeals
Office in favor of respondent-appellee, the Commissioner of Internal Revenue.
              For the tax years 1993 and 1997 through 2002, Nitschke either
failed to file federal income tax returns or filed returns reflecting a zero tax
liability.   The Commissioner assessed these liabilities and sent notice and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                         No. 08-60974

demand to Nitschke, yet a balance remains due.                 After the Office of Appeals
sustained a notice of tax lien issued to Nitschke, the Tax Court upheld this
determination. Nitschke moved to vacate the court’s order and decision. The
Tax Court denied the motion by notation stamped on the document.
                On appeal, instead of challenging the underlying tax liabilities, or
the Tax Court’s imposition of a penalty for frivolous delay,1 Nitschke claims only
that the Tax Court's denial of his motion to vacate by means of stamped notation
is an abuse of discretion. He has waived all other issues by failing to raise and
argue them in his opening brief on appeal.2 This rule applies even when the
appellant is appearing pro se.3
                We construe Nitschke’s pro se brief liberally. 4 Even so, he fails to
demonstrate the Tax Court abused its discretion by denying Nitschke’s motion
to vacate by stamped notation. Nitschke made one set of meritless arguments
to the Tax Court at trial and the Tax Court rejected those claims in a written
opinion. Nitschke then re-asserted those same claims in his motion to vacate;
he is not entitled to a second written opinion on those issues. The Tax Court’s
denial of Nitschke’s motion to vacate is AFFIRMED.




       1
        In assessing this penalty, the Tax Court noted that Nitschke had previously filed and
lost other actions challenging his tax liabilities, and had been warned about the possible
imposition of sanctions: Nitschke v. United States, 2003-1 U.S. Tax Cas. (CCH) ¶ 50,432, at
88,242 (D. Nev. 2003) (aff’d 92 F. App’x 529 (9th Cir. 2004)), Nitschke v. Commissioner of
Internal Revenue, 76 F. App’x 137 (9th Cir. 2003).
       2
           See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
       3
           Id.; Knighten v. Commissioner, 702 F.2d 59, 60 n.1 (5th Cir. 1983).
       4
           See United States v. Robinson, 542 F.3d 1045, 1050 (5th Cir. 2008).

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