Kubon v. Commissioner , 479 F. App'x 759 ( 2012 )

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NOT FOR PUBLICATION JUL 05 2012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