Herbert Carl Heintz v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT CARL HEINTZ,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 12-72620
Tax Ct. No. 2769-11L
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Herbert Carl Heintz appeals pro se from the Tax Court’s summary judgment
permitting the Internal Revenue Service (“IRS”) to collect unpaid trust fund
recovery penalties under 26 U.S.C. § 6672 on taxes withheld from employees’
paychecks. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de
* 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
APR 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 12-72620
novo, Sollberger v. Comm’r, 691 F.3d 1119, 1123 (9th Cir. 2012), and we affirm.
The Tax Court properly sustained the collection action because Heintz failed
to raise any permissible issues or defenses at the collection due process (“CDP”)
hearing, and the Tax Court properly concluded that Heintz could not challenge the
existence or amount of the underlying tax liability at the CDP hearing because
Heintz had a prior opportunity to dispute that liability and did not exercise it. See
26 U.S.C. § 6330(c)(2) (listing issues that may be considered at the CDP hearing);
§ 6330(c)(2)(B) (taxpayer may raise at the CDP hearing challenges to the existence
or amount of the underlying tax liability only if he or she did not receive a notice
of deficiency or otherwise have an opportunity to dispute such tax liability);
§ 6330(d) (the Tax Court’s jurisdiction is limited to the issues properly raised at
the CDP hearing); see also Boynton v. United States, 566 F.2d 50, 53 (9th Cir.
1977) (imposition of penalties under § 6672 does not require a notice of
deficiency).
We reject as without merit Heintz’s contentions that the IRS lacked a
reasonable basis to deny him an extension of time to appeal the underlying
liability, and that precluding Heintz from challenging his liability for the trust fund
recovery penalties at the CDP hearing violated his due process rights.
AFFIRMED.

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