David Franklin Day; Ronda Ching Day v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID FRANKLIN DAY; RONDA
CHING DAY,
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 14-73745
Tax Ct. No. 1770-12L
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
David Franklin Day and Ronda Ching Day appeal pro se from the Tax
Court’s order sustaining the Commissioner of Internal Revenue’s proposed levy
action in connection with the Days’ income tax liabilities. We review de novo the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 14-73745
Tax Court’s legal conclusions and for clear error its findings of fact. Charlotte’s
Office Boutique, Inc. v. Comm’r, 425 F.3d 1203, 1211 (9th Cir. 2005). We affirm.
The Tax Court determined properly that the Days’ interest-abatement claim
for tax year 2001 should be excluded from the collection due process (“CDP”)
hearing because the Days failed to raise the claim properly during the CDP hearing
and support it with evidence. See 26 C.F.R. § 301.6330-1(f)(2), Q & A F-3
(stating that Tax Court may consider only issues that were raised properly and
supported with evidence in the CDP hearing); Brecht v. Comm’r, 96 T. C. Memo
2008-213, No. 11470-07L (Sept. 15, 2008) (ruling that tax abatement claim was
not raised with “sufficient specificity” in CDP hearing despite a “general request
by petitioners to abate interest”).
The Days’ interest-abatement claim for tax year 2002 was properly excluded
from the CDP hearing because the Days signed a Form 870, Waiver of Restrictions
on Assessment and Collection of Deficiency in Tax and Acceptance of
Overassessment, which waived their right to contest the assessment and collection
of their 2002 tax year deficiency and any interest provided by law.
The Tax Court properly upheld the denial of the Days’ requests for a face-to-
face CDP hearing because there is no right to a face-to-face CDP hearing and the
Days failed to raise any relevant, non-frivolous reasons to disagree with the
proposed levy. See 26 C.F.R. § 301.6330-1(d)(2), A-D6 (“A CDP hearing may,

-- 2 of 3 --

3 14-73745
but is not required to, consist of a face-to-face meeting . . . . ”) & A-D7 (“[A]
taxpayer who presents in the CDP hearing request relevant, non-frivolous reasons
for disagreement with the proposed levy will ordinarily be offered an opportunity
for a face-to-face conference at the Appeals office closest to taxpayer’s
residence.”).
We reject as without merit the Days’ contention that the denial of their
requests for a face-to-face CDP hearing is inconsistent with Internal Revenue
Service policy.
We do not consider the Days’ equal protection challenge to the denial of
their requests for a face-to-face CDP hearing because the Days failed to raise this
issue in the Tax Court and have not established exceptional circumstances. See
Monetary II Ltd. P’ship v. Comm’r, 47 F.3d 342, 347 (9th Cir. 1995) (absent
showing of exceptional circumstances, court will not consider arguments not raised
before the Tax Court).
AFFIRMED.

-- 3 of 3 --