Gary Lohse v. Cir

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GARY R. LOHSE, No. 19-71546

Petitioner-Appellant, Tax Ct. No. 11487-17

v. MEMORANDUM * COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

Gary R. Lohse appeals pro se the Tax Court’s order dismissing for failure to

prosecute his petition challenging the Commissioner of Internal Revenue’s

determination of a tax deficiency for the 2014 tax year. We have jurisdiction under

26 U.S.C. § 7482(a)(1). We review for an abuse of discretion. Noli v. Comm’r,

* 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). 860 F.2d 1521, 1527 (9th Cir. 1988). We affirm.

The Tax Court did not abuse its discretion by dismissing Lohse’s action for

failure to prosecute because Lohse refused to stipulate to facts as required by Tax

Ct. R. 91(a)(1), failed to contest any specific adjustments in the Commissioner’s

notice of deficiency, and failed to submit any evidence of his income or deductions

for the 2014 tax year. See Tax Ct. R. 123 (authorizing the Tax Court to dismiss a

case “[f]or failure of a petitioner properly to prosecute or to comply with these

Rules or any order of the Court or for other cause which the Court deems

sufficient”); Larsen v. Comm’r, 765 F.2d 939, 941 (9th Cir. 1985) (affirming the

Tax Court’s dismissal for failure to prosecute where the taxpayer refused to

stipulate as required by Rule 91).

We reject as unsupported by the record Lohse’s contention that the Tax

Court lacked jurisdiction.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Lohse’s request for judicial notice, set forth in the opening brief, is denied.

AFFIRMED.

2 19-71546