                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 05 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



W. JAMES KUBON and VALLY                          No. 11-71592
KUBON,
                                                  Tax Ct. No. 18866-09L
               Petitioners - Appellants,

  v.                                              MEMORANDUM *

COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       W. James and Vally Kubon appeal pro se from the Tax Court’s summary

judgment permitting the Commissioner of Internal Revenue (“Commissioner”) to

proceed with an action to collect their federal income tax liability for tax year


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2004. We have jurisdiction under 26 U.S.C. § 7482(a). We review de novo.

Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir. 2002). We affirm.

      The Tax Court properly determined that the Kubons were precluded from

challenging their tax liability for tax year 2004 because they received notices of the

deficiency but failed to petition the tax court for a deficiency hearing. See 26

U.S.C. § 6330(c)(2)(B) (permitting challenge to the underlying tax liability if the

taxpayer “did not receive any statutory notice of deficiency for such tax liability or

did not otherwise have an opportunity to dispute such tax liability”). Contrary to

their contention on appeal, the Kubons did not raise a genuine dispute of material

fact as to whether they did not receive the notices of deficiency because they did

not submit any evidence contradicting the evidence of mailing submitted by the

Commissioner. See Hagner v. United States, 285 U.S. 427, 430 (1932) (a properly

mailed letter carries with it a presumption of receipt).

      The Kubons’ remaining contentions, including that the Tax Court judge

violated their due process rights, are unpersuasive.

      We do not consider matters not distinctly argued in the opening brief. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      AFFIRMED.




                                           2                                       11-71592
