NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICKY BURNINGHAM,

Petitioner

- Appellant,

v. COMMISSIONER OF INTERNAL REVENUE, Respondent

- Appellee. No s . 14

- 70712 14

- 70713 Tax Ct. No s . 24619

- 12L

21372

- 12L

MEMORANDUM *

Appeals from Decision s of the United States Tax Court Submitted January 18, 2017 ** Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges. In these consolidated appeals, Ricky Burningham appeals pro se from the Tax Court’s decisions upholding federal income tax liability for tax years 2003 through 2008

. We have jurisdictio n under 26 U.S.C. § 7482(a)(1). We review de

novo whether the Tax Court had jurisdiction, MK Hillsi de Partners 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 these case s are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

JAN 30 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 14

- 70712

826 F.3d 1 200, 1204 (9th Cir. 2016), and for an abuse of discretion a dismiss al for failure to prosecute , Noli v. Comm’r , 860 F.2d 15 21, 1527 (9th Cir. 1988). We affirm. Appeal No. 14
- 70713 (Tax Years 2003
- 2007) The Tax Court properly exe rcised jurisdiction over Burningham ’s cas e when it reviewed the Commissioner’s determination to proceed by levy to collect unpaid federal income taxes

. See 26 U.S.C. § 6330(d) ( conferring jurisdiction to the Tax
Court to review levy determinations sustained by the Internal Revenu e Service Office of Appeals (“Office of Appeals”) ) ; T. C . R. 330(b) (Tax Court shall have jurisdiction over a levy action when the conditions of § 6330(d) have been satisfied). We rej ect as without merit Burningham ’s contention that the Tax Court exceeded the proper scope of review under § 6330(d), as the Tax Court did not consider any evidence outside of the administrative record in existenc e at the time the Office of Appeals sustained the Commissioner’s determination to proceed w ith collecting unpaid income taxes

. Appeal No. 14
- 70712 (Tax Year 2008) The Tax Court did not abuse its dis cretion in dismissing Burningham’s petition for failu re to prosecute because Burningham failed to appear at trial or3 14

- 70712

offer any valid excuse for his absence

. See Noli , 860 F.2d at 1527 (noting that “dismissal for failure properly to prosecute will normally arise where a party fails to appear at trial”); see also T. C. R. 123(a), (b) (Tax Court may dismiss a case and enter a decision against a petitioner where the pe titioner fails to prosecute properly or fails to procee d a s required by the Tax Court); T. C. R. 149(a) (Tax Court may dismiss a case for failure to prosecute where the petitioner’s abs ence from trial is unexcused); Larsen v. Comm’r , 765 F.2d 939, 941 (9th Cir. 1985) (Tax Court has discretion to dismiss a petition for failure to comply with Tax Court Rules). The Tax Court did not err by returning unfiled Burningham’s motion to dismiss and objection s to the Commissioner’s summary judgment motion because the documents did not comply with Tax Court Rule 54

. Burni n gham did not attempt to refile the motion and the objections in compliance with the Tax Court Rules, and neither these documents, nor Burningham’s notice of nona ppearance challenging the Tax Court’s jurisdiction , constitute ac ceptable substitutes for his appearance at trial

.4 14

- 70712

Burningham ’s request for judicial notice in Appeal No. 14

- 70712, filed on May 6, 2014, is granted.
14
- 70713 : AFFIRMED.
14
- 70712 : AFFIRMED.