NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3204

SHARON D. LEVY, Petitioner,

v.

DEPARTMENT OF THE TREASURY, Respondent.
Sharon D. Levy , of Memphis, Tennessee, pro se. Douglas K. Mickle , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director and Mark A. Melnick , Assistant Director. Of counsel on the brief was Garry Wade Klein , Office of the Chief Counsel, Internal Rev enue Service, of At lanta, Georgia. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3204 SHARON D. LEVY, Petitioner,

v. DEPARTMENT OF THE TREASURY, Respondent.

___________________________

DECIDED: September 12, 2007

___________________________ Before DYK and MOORE, Circuit Judges , and COTE, District Judge *

. PER CURIAM. Sharon D. Levy (“Ms. Levy”) appeals from the decision of the Merit Systems Protection Board (“Board”) in AT07520702221-I-1, affirming the decision of the Internal Revenue Service (“IRS”) to remove her. We affirm

. BACKGROUND Until her removal, Ms. Levy had been em ployed since April 6, 1999, as a seasonal clerk, GS-303-4, in the Memphis o ffice of the IRS. The IRS selected Ms. Levy’s Federal tax returns from 2001 and 2002 for audit based upon routine computer matching. The audit of her 2001 return, comp leted over a month before her 2002 return was due, found that she had substantial unsubstantiated itemized deductions for medical and dental expenses and for charitabl e contributions, and that she had a tax

* Honorable Denise Cote, District Judge, United States District Court for the Southern District of New York, sitting by designation.deficiency of $2,850.97. The audit of her 2002 return also found substantial unsubstantiated deductions and found that Ms. Levy had a tax defici ency of $4,208.81. In addition, on February 14, 2005, the IRS notified Ms. Le vy that she still owed money to the United States for back ta xes for tax years 2001, 2002, and 2003. On June 27, 2007, the IRS issued a notic e of proposed removal to Ms. Levy. The notice stated two reasons for removing Ms. Levy. Reason I charged Ms. Levy with overstating deductions for tax years 2001 and 2002. Reason II charged Ms. Levy with failing to timely pay her income tax liab ility for 2001, 2002, and 2003. The notice then stated that, with respect to Reason I, Ms. Le vy was being charged in the alternative with violating Section 1203(b)(9) of the Internal Revenue Service Restructuring and Reform Act of 1998 (“Restructuring and Reform Act”), Pub. L. No. 105-206, tit. I, § 1203, 112 Stat. 685, 720-21 (codified at 26 U.S.C. § 7804 note) 1 , or with violating a provision of other laws, rules, or regulations. On November 17, 2006, the IRS sustained the charges in the proposed removal and determined that removal was an appropriate penalty and that mitigation was not appropriate. Ms. Levy was removed from her position effective December 1, 2006. Ms. Levy appealed her removal to the Board. After conducting a hearing, the adminis trative judge (“AJ”) issued an initial decision on April 5, 2007, sustaining Ms. Levy’ s removal. The AJ found that the agency had established by a preponderance of the evidence the facts necessary to sustain both

1 Section 1203(b)(9) of the Restruct uring and Reform Act provides for the automatic termination of any employee of t he IRS if there is a final administrative determination that the employ ee has willfully understated his in come tax liability, unless there was reasonable cause for such understatement.

2007-3204 2charges. The AJ found that the improper nature of the deduc tions taken on the 2001 and 2002 returns was readily apparent and noted that the 2002 deductions claimed totaled approximately 56% of the Levys’ gross income for that year. The AJ also found that Ms. Levy “with reckless indifference” continued to use the ta x preparer that had prepared her 2001 return after being informed that that return was being audited. Levy v. Dep’t of Treasury , No. AT-0752-07-0221-I-1, at * 4 (M.S. P.B. April 5, 2007). The AJ also found that Ms. Levy failed to timely pay her tax returns for 2001, 2002, and 2003. The AJ held that Ms. Levy’s removal clearly promoted the efficiency of the service because her failure to file timely accurate re turns went to the heart of the mission of the IRS, her employer. The AJ concluded that the penalty of removal was well within the bounds of reasonableness. See Douglas v. Veterans Admin. , 5 M.S.P.R. 280, 306-308 (1981). Ms. Levy did not petition the full Board fo r review of the AJ’s decision, and the initial decision thus became the final decision of the Board. Ms. Levy timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000). DISCUSSION The Board’s decision must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained without procedures required by la w, rule, or regulation; or unsupported by substantial evidence. 5 U.S. C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd. , 145 F.3d 1480, 1483 (Fed. Cir. 1998).

2007-3204 32007-3204 4 On appeal Ms. Levy argues that “the MSPB fa iled to take into account that the tax preparer defrauded [her] [and] misled [her].” Pet’r Br. 1. However, we see no error in the Board’s findings that Ms. Levy could not excuse her incorrect tax filing in 2002 by her reliance on the same tax preparer afte r the audit of her 2001 return had revealed substantial unsubstantiated deduc tions. Moreover, “[a]s a general rule, the duty of filing accurate returns cannot be avoided by placi ng responsibility on a tax return preparer.” Metra Chem Corp. v. Comm’r , 88 T.C. 654, 662 (1987). Ms. Levy also argues that “there were im portant grounds for mitigation” in this case. Pet’r Br. 1. The B oard’s determination that the pena lty of removal was well within the bounds of reasonableness was suppor ted by substantial evidence. Accordingly, we affirm the Board’s decision. No costs.