Marilyn S. Kwolek v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARILYN S. KWOLEK,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 19-73098
Tax Ct. No. 9731-18L
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted May 11, 2021**
Pasadena, California
Before: OWENS, R. NELSON, and BADE, Circuit Judges.
Marilyn S. Kwolek (“Kwolek”) appeals from the tax court’s decision
granting summary judgment to the Commissioner of the Internal Revenue Service
in her action challenging the notice of determination issued for tax years 1999
through 2008 following a collection due process (“CDP”) hearing. On appeal,
* 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
MAY 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Kwolek argues that she should have been allowed to dispute her underlying
liability for tax years 1999 to 2004 at the CDP hearing. We have jurisdiction under
26 U.S.C. § 7482(a)(1). We review de novo, Severo v. Comm’r, 586 F.3d 1213,
1215 (9th Cir. 2009), and we affirm.
The tax court properly granted summary judgment because Kwolek could
not dispute the amount of her 1999–2004 tax liability during the CDP hearing. See
26 U.S.C. § 6330(c)(2)(B). A “person may . . . raise at the [CDP] hearing
challenges to the existence or amount of the underlying tax liability for any tax
period if the person did not receive any statutory notice of deficiency for such tax
liability or did not otherwise have an opportunity to dispute such tax liability.” See
id.
Here, however, Kwolek received statutory notice of the tax deficiency. See
id. In a prior action in tax court, Kwolek sought redetermination of her 1999–2004
tax deficiencies. Following an evidentiary hearing, the tax court granted
Commissioner’s motion to dismiss for lack of jurisdiction—thereby sustaining the
determination of the 1999–2004 tax deficiencies—because Kwolek failed to file
her petition for redetermination within the required 90-day period. See 26 U.S.C.
§ 6213(a). The tax court in that prior action concluded that Kwolek was notified of
the 1999–2004 tax deficiency when it was mailed to her last known address. See
26 U.S.C. § 6212(b)(1); Erhard v. Comm’r, 87 F.3d 273, 274–75 (9th Cir. 1996).

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That decision explained Kwolek could not avoid receiving notice and as a result
“hold open the 90-day window to file her petition in Tax Court simply by refusing
to pick up her mail.” Kwolek is thus precluded from challenging in this action
whether and when she received statutory notice of the 1999–2004 tax deficiency.
See § 6330(c)(4)(A); In re Baker, 74 F.3d 906, 910 (9th Cir. 1996) (per curiam).
Because Kwolek cannot now reopen the issue to dispute that she received statutory
notice or that she otherwise did not have the opportunity to dispute the tax liability,
she cannot challenge the amount of her underlying tax liability during the CDP
hearing. See § 6330(c)(2)(B); 26 C.F.R. § 301.6330-1(e)(4).
We do not consider Kwolek’s request for an abatement because Kwolek
failed to raise this issue before the tax court. See Monetary II Ltd. P’ship v.
Comm’r, 47 F.3d 342, 347 (9th Cir. 1995).
AFFIRMED.

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