               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
               not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit




                                       06-3075



                                  MICHAEL AKERS,

                                                          Petitioner,

                                          v.

                        DEPARTMENT OF THE TREASURY,

                                                          Respondent.



                          __________________________

                             DECIDED: May 3, 2006
                          __________________________


Before MICHEL, Chief Judge, NEWMAN, and MAYER, Circuit Judges.

PER CURIAM.

      Michael Akers appeals the final decision of the Merit Systems Protection Board,

affirming his removal from the Department of the Treasury.      Akers v. Dep’t of the

Treasury, 100 M.S.P.R. 270 (2005). We affirm.

      We must affirm the board’s decision unless it was arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law; obtained without procedures

required by law, rule or regulation having been followed; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000). Akers admits that he failed to report income

earned by painting houses on his federal income tax filings for 1999 and 2000.

Because he distributed flyers and solicited customers, substantial evidence supports the

board’s conclusion that the unreported income derived from an outside business

activity, not a hobby. Therefore, in light of the board’s credibility determinations, the

length of Akers’ service at the Internal Revenue Service (“IRS”), and department

briefings concerning his obligations to report outside business activities and outside

income, the board properly found that he willfully understated his individual income tax

liability, in violation of section 1203(d)(9) of the IRS Restructuring and Reform Act of

1998 (“RRA”), Pub. L. No. 105-206, tit. I, § 1203, 112 Stat. 685, 720-21 (codified at 26

U.S.C. § 7804).    In view of his violation and the IRS Commissioner’s finding that

removal was appropriate, the department was required to remove him. See James v.

Tablerion, 363 F.3d 1352, 1359 (Fed. Cir. 2004); see also RRA § 1203(c)(3). As such,

the board properly affirmed Akers’ removal.




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