                                NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                                        FILED
                                FOR THE NINTH CIRCUIT                                        DEC 12 2011

                                                                                      MOLLY C. DWYER, CLERK
                                                                                        U.S. COURT OF APPEALS
535 RAMONA, INC.,                             )      No. 10-73386
                                             )
                                             )       Docket No. 6443-07L, United
        Petitioner-Appellant,                )       States Tax Court
                                             )
                                             )       MEMORANDUM*
       v.                                    )
                                             )
COMMISSIONER OF INTERNAL                     )
REVENUE,                                     )
                                             )
       Respondent-Appellee.                  )
                                             )

                       On Appeal of an Order and Decision of the
                              United States Tax Court
                          Judge James S. Halpern, Presiding

                               Submitted December 7, 2011**
                                 San Francisco, California

Before: ALARCÓN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Petitioner and Appellant 535 Ramona, Inc. (“Ramona”) appeals an Order

and Decision of the United States Tax Court denying it relief from an Internal

       *
        This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
       **
         The panel unanimously finds this case suitable for decision without oral argument.
Fed. R. App. P. 34(a)(2).
Revenue Service (“IRS”) collection action for a tax liability assessed pursuant to

Internal Revenue Code (“I.R.C”) § 6330(c)(2)(B).*** The IRS previously granted

Ramona a Collection Due Process (“CDP”) hearing, but denied relief. On appeal,

the Tax Court denied relief, applying a preponderance of the evidence standard.

The only issue raised on appeal was whether this burden of proof was appropriate

or erroneous. Because Ramona raised the issue for the first time before this court,

it waived its right to appeal on these grounds. Even absent a waiver of appeal, the

burden of proof applied by the Tax Court was proper, and the decision below is

affirmed.

      As a general rule, this court does not hear issues raised for the first time on

appeal. Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985). Ramona did not

claim that any of the three exceptions to this rule applied. Although Ramona

mentioned in its opening brief before the Tax Court that the court had not yet

considered the proper burden of proof in CDP cases where underlying liability is

an issue, Ramona did not present an argument for an alternative burden. In fact,

Ramona acknowledged that it had the burden of proof and argued that it had

established its case “by a preponderance of the evidence.” Because Ramona failed


      ***
            All references are to the I.R.C. as amended and in effect at the time in
question.

                                            2
to argue that the Tax Court applied the incorrect burden of proof until appeal to

this court, Ramona waived its right to appeal this issue. See id.

       However, even if we were to consider the substantive merits of the claim,

the burden of proof applied by the Tax Court was appropriate. In all trials before

the Tax Court, “the burden of proof shall be upon the petitioner.” Tax Ct. R.

142(a). The determination of tax liability by the IRS is presumptively correct, and

the taxpayer bears the burden of proving that the IRS’s determination is improper

by a preponderance of the evidence. Welch v. Helvering, 290 U.S. 111, 115

(1933); Tax Ct. R. 142(a). This general rule applies whether the taxpayer appears

in Tax Court or federal district court. Ramona cites no authority supporting its

contention that a standard lower than a preponderance of the evidence should apply

to its claim.

       Accordingly, the Tax Court’s Order and Decision is AFFIRMED.




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