Albert M. Kun v. Commissioner of Internal Revenue

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT M. KUN,
Petitioner - Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
No. 08-74702
Tax Ct. No. 11988-06L
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
Albert M. Kun appeals pro se from the Tax Court’s decision concluding that
the Commissioner of Internal Revenue (“Commissioner”) did not abuse his
discretion by rejecting Kun’s offer in compromise and from the Tax Court’s order
imposing of a penalty sua sponte under 26 U.S.C. § 6673. We have jurisdiction
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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08-74702 2
under 26 U.S.C. § 7482(a). On appeal from the Tax Court, we review for an abuse
of discretion the Commissioner’s decision whether to accept an offer in
compromise. Keller v. Comm’r, 568 F.3d 710, 716 (9th Cir. 2009). We review for
clear error the factual findings underlying the Tax Court’s imposition of a penalty.
Id. We affirm.
Kun’s contention that the Commissioner abused his discretion by rejecting
Kun’s offer in compromise without considering the hypothetical effect of a
bankruptcy filing is unavailing because Kun raised the issue for the first time on
appeal to the Tax Court. See 26 C.F.R. § 301.6330-1(f)(2), Q-F3 & A- F3 (on
appeal, a taxpayer may only ask the court to consider an issue that was properly
raised at the collection due process hearing); see also Portland GE Co. v.
Bonneville Power Admin., 501 F.3d 1009, 1023 (9th Cir. 2007) (“As a general rule,
we will not review challenges to agency action raised for the first time on
appeal.”).
The Tax Court was not required to warn Kun before imposing a § 6673
penalty, and the record supports the Tax Court’s conclusion that Kun’s appeal was
frivolous. See Carter v. Comm’r, 784 F.2d 1006, 1009 (9th Cir. 1986) (discussing
Tax Court’s imposition of a penalty under § 6673).
AFFIRMED.

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