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The Honorable Joseph H. Gale, United States Tax Court Judge.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2146

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Xavier J. R. Avula, *

Sulochana D. Avula, *

*

Appellants, *

* Appeal from the United States

v. * Tax Court.

*

Commissioner of Internal Revenue, * [UNPUBLISHED]

*

Appellee. *

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Submitted: March 27, 2007

Filed: April 6, 2007

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Before COLLOTON, HANSEN, and BENTON, Circuit Judges.

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PER CURIAM.

Xavier and Sulochana Avula, husband and wife, appeal from the tax court’s1

adverse grant of summary judgment in favor of the Commissioner of Internal Revenue

(Commissioner), upholding a decision by the Internal Revenue Service Appeals Office

(IRS AO) following a collection due process (CDP) hearing, and allowing the

Commissioner to collect on the Avulas’ interest liability from the 1993 tax year.
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We review the tax court’s decision in the same manner and to the same extent

as we would review a district court decision granting summary judgment. See 26

U.S.C. § 7482. Accordingly, we review the tax court’s summary judgment decision

de novo, applying the same standards as those applied by the tax court. See Cent. S.D.

Coop. Grazing Dist. v. Sec’y of U.S. Dep’t of Agric., 266 F.3d 889, 894 (8th Cir.

2001) (“We review a district court’s summary judgment decision de novo, applying

the same standards as those applied by the district court.”). In the present context, we

review the IRS AO’s decision for an abuse of discretion, basing that review on the

information that was before the IRS AO in the CDP proceedings. See Robinette v.

Comm’r, 439 F.3d 455, 462 (8th Cir. 2006) (review standard).

We conclude that the IRS AO did not abuse its discretion in determining the

Avulas’ interest liability from the 1993 tax year. The only argument asserted by the

Avulas at the CDP hearing was a challenge to their underlying income tax liability.

However, the Avulas were barred from challenging their underlying tax liability

because they had received statutory notice thereof and were afforded an opportunity

to dispute that liability, which they did. See 26 U.S.C. § 6330(c)(2)(B) (person

requesting CDP hearing may raise at hearing challenges to existence or amount of

underlying tax liability for any tax period if person did not receive statutory notice of

deficiency for such tax liability or did not otherwise have opportunity to dispute such

tax liability). The tax court therefore did not err in granting summary judgment for

the Commissioner. See Avula v. Comm’r, 105 Fed. Appx. 127, 128 (8th Cir. 2004)

(unpublished per curiam) (affirming tax court’s summary judgment for Commissioner

where taxpayers had received statutory notice of deficiency, had previously litigated

merits of underlying liabilities in tax court, and were precluded under § 6330(c)(2)(B)

from challenging tax liabilities in CDP proceedings). We also find no merit to the

Avulas’ argument that funds have been improperly confiscated from their bank

accounts before exhaustion of all appeals. The only IRS collection actions they have

identified appear to relate to their liabilities for other tax years, for which their appeals

have been exhausted.
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Accordingly, we affirm the tax court’s decision. See 8th Cir. R. 47B.

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