Burningham v. Commissioner, 677 F. App'x 316

Pro se petitioner Ricky Burningham appealed Tax Court decisions upholding federal income tax liabilities for tax years 2003–2008 in two consolidated appeals.
Appeal No. 14-70713 concerned tax years 2003–2007 and involved the Tax Court’s review of the IRS Office of Appeals’ determination to proceed by levy under 26 U.S.C. § 6330(d).
Burningham argued the Tax Court exceeded the scope of § 6330(d) review and considered evidence beyond the administrative record.
Appeal No. 14-70712 concerned tax year 2008; Burningham failed to appear at trial, and the Tax Court dismissed his petition for failure to prosecute and returned noncompliant filings.
The Tax Court returned Burningham’s motion to dismiss and objections because they did not comply with Tax Court Rule 54; he did not refile properly.
The Ninth Circuit reviewed jurisdiction de novo and dismissal for failure to prosecute for abuse of discretion, and affirmed both Tax Court orders.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tax Court had jurisdiction to review levy determination under § 6330(d)	Burningham contended Tax Court exceeded the scope of § 6330(d) review	IRS/Comm’r asserted Tax Court properly reviewed the Commissioner’s determination to proceed by levy based on the administrative record	Court held Tax Court had jurisdiction and did not exceed scope; it reviewed only administrative record
Whether Tax Court considered evidence outside the administrative record	Burningham argued extrarecord evidence was considered, rendering review improper	Comm’r maintained no evidence outside the administrative record was considered	Court rejected Burningham’s claim; no extrarecord consideration occurred
Whether dismissal for failure to prosecute (tax year 2008) was an abuse of discretion	Burningham failed to appear and offered no valid excuse; he argued jurisdiction/other procedural issues in filings	Comm’r/Tax Court argued dismissal proper under Tax Court Rules for unexcused absence and failure to prosecute	Court held dismissal was not an abuse of discretion given absence and lack of excuse
Whether the Tax Court erred in returning noncompliant filings (motion to dismiss/objections)	Burningham argued his filings should be accepted and substitute for appearance	Tax Court maintained filings did not comply with Rule 54 and were not substitutes for appearance	Court held return of noncompliant filings was correct; filings did not excuse nonappearance

MK Hillside Partners v. Comm’r, 826 F.3d 1200 (9th Cir. 2016) (de novo standard for reviewing Tax Court jurisdiction)
Noli v. Comm’r, 860 F.2d 1521 (9th Cir. 1988) (dismissal for failure to prosecute when party fails to appear at trial)
Larsen v. Comm’r, 765 F.2d 939 (9th Cir. 1985) (Tax Court has discretion to dismiss for failure to comply with rules)