                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         OCT 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOHN HOBART ZENTMYER,                           No.    18-72116

                Petitioner-Appellant,           Tax Ct. No. 5692-17

 v.
                                                MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,

                Respondent-Appellee.

                           Appeal from a Decision of the
                             United States Tax Court

                           Submitted October 15, 2019**

Before:      FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

      John Hobart Zentmyer appeals pro se from the Tax Court’s order dismissing

for failure to state a claim his petition challenging the Commissioner’s imposition

of a levy in a collection action. We have jurisdiction under 26 U.S.C.

§ 7482(a)(1). We review de novo. Grimes v. Comm’r, 806 F.2d 1451, 1453 (9th


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 1986). We affirm.

      The Tax Court properly dismissed Zentmyer’s petition for failure to state a

claim because Zentmyer did not set forth a clear and concise assignment of error or

any facts demonstrating error in the Commissioner’s determinations. See Tax Ct.

R. 34(b)(4); Grimes, 806. F.2d at 1453 (income tax is constitutional; taxable

income includes “gain derived from capital, from labor, or from both combined”

(citation and internal quotation marks omitted)).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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