                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             NOV 6 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TIMOTHY JOHN MARTIN,

                Petitioner-Appellant,

    v.                                                   No. 99-9027
                                                     (T.C. No. 20034-88)
    COMMISSIONER OF INTERNAL                         (Petition for Review)
    REVENUE,

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY, PORFILIO,           and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Taxpayer Timothy John Martin requests review of a decision of the United

States Tax Court disallowing certain losses, deductions, and credits claimed from

his investment in a limited partnership tax shelter. On appeal, taxpayer asserts

that the Tax Court violated his due process rights by ruling against him without

affording him an evidentiary hearing. We have jurisdiction pursuant to 26 U.S.C.

§ 7482, and we affirm the decision of the Tax Court.


                                    I. Background

       In the early 1980’s, taxpayer formed R & M Partners, an entity he then used

to purchase a limited partnership interest in Durango Oil and Gas Associates

(Durango), an Electra/Hemisphere tax shelter. On his tax returns for the years

1980, 1981, and 1982, taxpayer claimed distributive losses, deductions, and tax

credits from the Durango interest. In 1988, the Commissioner sent taxpayer a

notice of deficiency disallowing the Durango losses, deductions, and tax credits

and assessing increased interest pursuant to 26 U.S.C. § 6621(c).

       Taxpayer timely filed a petition in Tax Court for a redetermination of the

stated tax liabilities. The Tax Court issued taxpayer an order to show cause as to

why it should not enter a decision in his case in accordance with   Krause v.

Commissioner , 99 T.C. 132 (1992),     aff’d sub nom. Hildebrand v. Commissioner    ,

28 F.3d 1024 (10th Cir. 1994), the test case in the Elektra/Hemisphere group of

Tax Court cases. After considering taxpayer’s response, the Tax Court entered an

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order upholding the Commissioner’s finding of income tax deficiencies for the

years in question and assessing increased interest pursuant to 26 U.S.C. § 6621(c).

Taxpayer seeks review of this order.


                                     II. Discussion

       We review Tax Court decisions “in the same manner and to the same extent

as decisions of the district courts in civil actions tried without a jury.” 26 U.S.C.

§ 7482(a)(1). Thus, we review purely factual issues under a clearly erroneous

standard, and we review purely legal questions de novo.        See Twenty Mile Joint

Venture, PND, Ltd. v. Commissioner      , 200 F.3d 1268, 1275 (10th Cir. 1999).

       In Krause , following a fifteen-week hearing, the Tax Court issued a lengthy

and comprehensive decision, holding that Electra/Hemisphere partnerships lacked

a profit motive and upholding the Commissioner’s disallowance of losses and

assessments of increased interest.    See 99 T.C. at 175-76. In an equally thorough

affirmance, this court upheld the decision of the Tax Court.      See Hildebrand , 28

F.3d at 1028.

       The Tax Court uses the show cause procedure in cases where, as here, the

decision on the instant case may be affected by a previously decided test case.

See Acierno v. Commissioner     , 74 T.C.M. (CCH) 738 (1997) (citing example

cases), aff’d , 185 F.3d 861 (3d Cir. 1999) (table). In conformity with this

procedure, the Tax Court issued an order directing taxpayer to show cause as to

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why a decision in his case should not be entered in accordance with the Tax

Court’s decision in Krause , which also involved Elektra/Hemisphere cases.         See

R. Order dated May 14, 1999. The court advised taxpayer that, if issues remained

which were not resolved by      Krause , he needed to inform the Tax Court of those

issues. See id. In his response, taxpayer argued that if given the opportunity to

conduct discovery, he would be able to successfully distinguish his case from

Krause . He asserted that he had not started discovery due to “his attempt to

resolve the case” outside of litigation.   1
                                               Id. Status Report dated July 15, 1999.

The Tax Court found his response insufficient and entered an order upholding the

Commissioner’s deficiency assessments.

       On appeal, taxpayer argues that he was denied procedural due process when

the Tax Court failed to hold an evidentiary hearing prior to ruling in favor of the

Commissioner. Procedural due process requires notice and an opportunity to be

heard. See Mullane v. Central Hanover Bank & Trust Co.           , 339 U.S. 306, 313-14

(1950) (holding that “at a minimum” due process “require[s] that deprivation of



1
        Labeling the Tax Court’s settlement offers as “arbitrary” and “capricious,”
taxpayer also asserted that he had not previously settled his case because he was
not afforded the same favorable terms of settlement offered to other investors. R.
Status Report dated July 15, 1999. The Tax Court did not address this contention
in its order making the show cause order absolute. Because taxpayer did not raise
this issue on appeal, the issue is deemed waived.  See State Farm Fire & Cas. Co.
v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding that failure to raise
issue in opening brief waives the issue).

                                               -4-
life, liberty or property by adjudication be preceded by notice and opportunity for

hearing appropriate to the nature of the case”).        However, a hearing is not

necessarily required in order to satisfy due process.       See Cafeteria & Restaurant

Workers, Local 473 v. McElroy , 367 U.S. 886, 894-95 (1961). “An elementary

and fundamental requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.”     Mullane , 339 U.S. at 314 (citations

omitted).

       Here, taxpayer had notice of the court’s intent to decide his case pursuant

to Krause , and an opportunity to object to this disposition with enough specificity

to convince the court that his case may be distinguishable.         Krause was decided in

1992, and affirmed by this court in 1994. The Tax Court’s order to show cause

was not issued until May 1999.     2
                                       Taxpayer, therefore, had ample time and

opportunity to do the discovery he perceived necessary in order to support his

contention that his case was distinguishable from         Krause. This he failed to do.




2
      The record on appeal is unclear as to why this case languished in Tax Court
from August 1988 until the decision was entered in September 1999. The Tax
Court docket sheet indicates that an earlier order to show cause was issued in July
1992, amended in August 1992, and discharged in November 1992. The docket
does not indicate further activity until the second order to show cause was issued
in May 1999.

                                             -5-
       Given these circumstances, we conclude that the Tax Court disposition of

taxpayer’s petition without a hearing did not violate due process.      See, e.g .,

Knighten v. Commissioner , 702 F.2d 59, 61 (5th Cir. 1983) (holding if petitioner

fails to assert any factual dispute and all his legal arguments are clearly meritless,

“there is simply no point in having [a hearing]. The Constitution does not require

such futile exercises.”). The petition for review is GRANTED, and the decision

of the Tax Court is AFFIRMED.



                                                        Entered for the Court



                                                        Wade Brorby
                                                        Circuit Judge




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