NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICKY BURNINGHAM,

Petitioner-Appellant,

 v.

COMMISSIONER OF INTERNAL 

REVENUE,

Respondent-Appellee.

Nos. 14-70712

 14-70713

Tax Ct. Nos. 24619-12L

 21372-12L

MEMORANDUM*

Appeals from Decisions 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 jurisdiction under 26 U.S.C. § 7482(a)(1). We review de 

novo whether the Tax Court had jurisdiction, MK Hillside 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 cases are suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JAN 30 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-70712 

826 F.3d 1200, 1204 (9th Cir. 2016), and for an abuse of discretion a dismissal for 

failure to prosecute, Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988). We 

affirm. 

Appeal No. 14-70713 (Tax Years 2003-2007)

The Tax Court properly exercised jurisdiction over Burningham’s case 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 Revenue 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 reject 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 existence at the time 

the Office of Appeals sustained the Commissioner’s determination to proceed with 

collecting unpaid income taxes. 

Appeal No. 14-70712 (Tax Year 2008)

The Tax Court did not abuse its discretion in dismissing Burningham’s

petition for failure to prosecute because Burningham failed to appear at trial or
3 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 petitioner fails to prosecute properly 

or fails to proceed as required by the Tax Court); T.C. R. 149(a) (Tax Court may 

dismiss a case for failure to prosecute where the petitioner’s absence 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 objections to the Commissioner’s summary judgment motion because 

the documents did not comply with Tax Court Rule 54. Burningham 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 nonappearance 

challenging the Tax Court’s jurisdiction, constitute acceptable 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.