John Crim v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2018
• Docket: 17-72701
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN MICHAEL CRIM, No. 17-72701

Petitioner-Appellant, Tax Ct. No. 1638-15

v. MEMORANDUM* COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Submitted November 9, 2018** Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and COLLINS,*** District Judge.

John Crim appeals the dismissal of his petition before the U.S. Tax Court for

lack of jurisdiction, the denial of his request for jurisdictional discovery, and the

* 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). *** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. denial of his motion to recuse all judges of the Tax Court. Because the parties are

familiar with the facts, we do not repeat them here. We have jurisdiction under

26 U.S.C. § 7482(a)(1), and we affirm.

We review de novo Crim’s claim that the Tax Court had subject matter

jurisdiction over his petition. Gorospe v. Comm’r, 451 F.3d 966, 968 (9th Cir.

2006). Because Crim has not presented any evidence that the IRS filed a notice of

a federal tax lien or a final intent to levy against him, that he requested a collection

due process hearing with the IRS Office of Appeals, that he attended an Office of

Appeals collection due process hearing, or that the Office of Appeals made any

“determination” addressing a disputed lien or levy, the Tax Court lacked

jurisdiction over Crim’s petition under 26 U.S.C. § 6320 and § 6330. Any

argument that Craig v. Commissioner, 119 T.C. 252 (2002), commands a different

result has been forfeited. See Christian Legal Soc’y Chapter of Univ. of Cal. v.

Wu, 626 F.3d 483, 487-88 (9th Cir. 2010). Crim also forfeited the arguments

raised for the first time in his reply brief that the Administrative Procedures Act,

5 U.S.C. § 706(1), and the All Writs Act, 28 U.S.C. § 1651, provide jurisdiction

here. The failure to find jurisdiction on these grounds was not plain error.

We review for abuse of discretion Crim’s claim that the Tax Court

improperly denied his request for jurisdictional discovery. Boschetto v. Hansing,

539 F.3d 1011, 1020 (9th Cir. 2008). Because Crim has not made “the clearest

2 showing that denial of discovery results in actual and substantial prejudice,” we

conclude that the Tax Court did not abuse its discretion. Id. (quoting Data Disc,

Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 n.1 (9th Cir. 1977)).

Given that the Tax Court lacked jurisdiction over Crim’s petition, we decline

to exercise our “discretionary jurisdiction” over the recusal motion. See Gruver v.

Lesman Fisheries Inc., 489 F.3d 978, 981 n.4 (9th Cir. 2007).

AFFIRMED.