                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-1036
                                     ___________

                                    DAVID JAHN,

                                                    Appellant

                                            v.

                    COMMISSIONER OF INTERNAL REVENUE
                     ____________________________________

                      On Appeal from the United States Tax Court
                                  (T.C. No. 07-6162)
                     Tax Court Judge: Honorable Maurice B. Foley
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 17, 2010

   Before: FUENTES, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: August 20, 2010)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      David Jahn did not file an income tax return for several years, including 2004.

The Commissioner executed a return for him pursuant to Internal Revenue Code

(“I.R.C.”) § 6020(b). In the return, the Commissioner allowed Jahn the standard
deduction and assessed a deficiency. Jahn filed a petition in Tax Court to challenge the

determination, arguing in pertinent part that he was entitled to itemize deductions. The

Tax Court disagreed. Jahn appeals.

       We have jurisdiction pursuant to 26 U.S.C. § 7482. Our review of the Tax Court’s

resolution of a question of law is plenary. See Lerman v. Commissioner, 939 F.2d 44, 46

(3d Cir. 1991). Upon review, we will affirm the Tax Court’s decision.

       As the Tax Court held, a taxpayer must file a return in order to itemize deductions.

The I.R.C. provides that “unless an individual makes an election under [I.R.C. § 63(e)]

for the taxable year, no itemized deduction shall be allowed for the taxable year.” I.R.C.

§ 63(e). The I.R.C. also directs that the election “shall be made on the taxpayer’s return.”

Id. Jahn did not file a return or properly claim itemized deductions on a return, so he was

not entitled to them. See id.; see also I.R.C. § 63(b) (stating that an individual who does

not elect to itemize his deductions for the taxable year is entitled to the standard

deduction). In his reply brief, Jahn urges us to interpret the word “shall” in I.R.C.

§ 63(e)(2) (“[a]ny election . . . shall be made on the taxpayer’s return”) as permissive

instead of mandatory. See R.R. Co. v. Hecht, 95 U.S. 168, 170 (1877). However, in the

context of I.R.C. § 63(e), which uses the word “may” to denote a permissive action, see I.R.C.

§ 63(e)(3), we conclude that “shall” describes a mandatory requirement.

       Jahn also argues that he was denied his right under 26 U.S.C. § 6213 to file a

petition with the Tax Court for the redetermination of a deficiency. He further contends



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that the Tax Court erred by failing to consider his evidence, namely his statement of

deductions and exemptions. We reject his contentions. He filed, and the Tax Court

considered, his petition for redetermination of the deficiency. A decision unfavorable to

him is not equivalent to a denial of the right to petition for a redetermination of a

deficiency. Furthermore, in coming to its decision, the Tax Court recognized that Jahn

sought to itemize deductions (and heard his other arguments, including his argument

relating to why he should not sign a tax return). Although Jahn initially mentioned

exemptions in his petition and repeats the fleeting reference in his opening brief on

appeal, we conclude that he has waived the issue, having nowhere developed it. See

Emerson v. Thiel College, 296 F.3d 184, 190 n.5 (3d Cir. 2002); cf. DIRECTV, Inc. v.

Seijas, 508 F.3d 123, 125 n.1 (3d Cir. 2007).

       For these reasons, we will affirm the Tax Court’s decision. We deny Jahn’s

motion for leave to file a supplemental brief.1




   1
    We note that Jahn provided no reason why he did not raise the argument in his
proposed supplemental brief sooner. In any event, the argument would not have changed
the disposition of this case.

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