United States v. 2011-12-12 | 10-73386 | 535 RAMONA, INC. V. CIR | nonprecedential | memorandum…

* This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without oral argument.
Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
535 RAMONA, INC., ) No. 10-73386
)
) Docket No. 6443-07L, United
Petitioner-Appellant, ) States Tax Court
)
) MEMORANDUM*
v. )
)
COMMISSIONER OF INTERNAL )
REVENUE, )
)
Respondent-Appellee. )
)
On Appeal of an Order and Decision of the
United States Tax Court
Judge James S. Halpern, Presiding
Submitted December 7, 2011 **
San Francisco, California
Before: ALARCÓN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Petitioner and Appellant 535 Ramona, Inc. (“Ramona”) appeals an Order
and Decision of the United States Tax Court denying it relief from an Internal
FILED
DEC 12 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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*** All references are to the I.R.C. as amended and in effect at the time in
question.
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Revenue Service (“IRS”) collection action for a tax liability assessed pursuant to
Internal Revenue Code (“I.R.C”) § 6330(c)(2)(B). *** The IRS previously granted
Ramona a Collection Due Process (“CDP”) hearing, but denied relief. On appeal,
the Tax Court denied relief, applying a preponderance of the evidence standard.
The only issue raised on appeal was whether this burden of proof was appropriate
or erroneous. Because Ramona raised the issue for the first time before this court,
it waived its right to appeal on these grounds. Even absent a waiver of appeal, the
burden of proof applied by the Tax Court was proper, and the decision below is
affirmed.
As a general rule, this court does not hear issues raised for the first time on
appeal. Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985). Ramona did not
claim that any of the three exceptions to this rule applied. Although Ramona
mentioned in its opening brief before the Tax Court that the court had not yet
considered the proper burden of proof in CDP cases where underlying liability is
an issue, Ramona did not present an argument for an alternative burden. In fact,
Ramona acknowledged that it had the burden of proof and argued that it had
established its case “by a preponderance of the evidence.” Because Ramona failed

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to argue that the Tax Court applied the incorrect burden of proof until appeal to
this court, Ramona waived its right to appeal this issue. See id.
However, even if we were to consider the substantive merits of the claim,
the burden of proof applied by the Tax Court was appropriate. In all trials before
the Tax Court, “the burden of proof shall be upon the petitioner.” Tax Ct. R.
142(a). The determination of tax liability by the IRS is presumptively correct, and
the taxpayer bears the burden of proving that the IRS’s determination is improper
by a preponderance of the evidence. Welch v. Helvering, 290 U.S. 111, 115
(1933); Tax Ct. R. 142(a). This general rule applies whether the taxpayer appears
in Tax Court or federal district court. Ramona cites no authority supporting its
contention that a standard lower than a preponderance of the evidence should apply
to its claim.
Accordingly, the Tax Court’s Order and Decision is AFFIRMED.

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