IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60746

Summary Calendar

RONALD F. MARASCALCO; REBECCA MARASCALCO,

Petitioners-Appellants

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee

Appeal from the Decision

of the United States Tax Court

USTC No. 5631-08

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Taxpayers Ronald F. and Rebecca Marascalco (the “Marascalcos”) appeal

following the United States Tax Court’s decision in favor of the Commissioner

of Internal Revenue (the “Commissioner”) determining that the Commissioner’s

settlement officer did not abuse her discretion in rejecting the Marascalcos’

proposed installment agreement as a collection alternative. Since the

underlying tax liability is not at issue, the Tax Court and this court review the

United States Court of Appeals

Fifth Circuit

F I L E D

April 1, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Commissioner’s administrative determinations for an abuse of discretion.

Christopher Cross, Inc. v. United States, 461 F.3d 610, 612 (5th Cir. 2006). And,

we affirm.

The facts of the case are undisputed. The Marascalcos owed unpaid

income taxes, penalties, and interest for the years 2003 to 2006. When the

Commissioner notified them that a federal tax lien would be filed, the

Marascalcos requested a Collection Due Process hearing afforded to them under

26 U.S.C. § 6320. During the hearing, the settlement officer proposed an

installment agreement under which the Marascalcos would pay $7,700 per

month for four years for a total of $369,466.00. The Marascalcos counter-offered

by proposing to pay $4,429.00 per month for ten years for a total of $531,480.00,

and to extend the statute of limitations on collections under 26 U.S.C. § 6502.

The settlement officer informed the Marascalcos that based on her calculations

of their disposable monthly income, the $7,700.00 per month was reasonable.

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The Marascalcos made no other counter-proposal. The Commissioner’s appeals

office issued its determination that the tax lien was appropriate because (1) the

Marascalcos had made no objection other than to proffer the alternative

installment plan, (2) the alternative installment plan was not viable and would

be rejected, (3) all requirements of law and administrative procedure had been

met, and (4) in the absence of evidence of a viable alternative, a federal tax lien

would best balance the government’s interest in efficient collection of taxes with

the taxpayer’s interest that the collection action be no more intrusive than

necessary.

The Marascalcos also argue that the settlement officer incorrectly calculated their

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monthly expenses and income. However, since the Marascalcos have failed to argue to this

court how the difference between the calculations—approximately $150.00 per month—would

impact the Commissioner’s ultimate decision, any arguments they might have made regarding

the alleged discrepancy are waived. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 417 (5th

Cir. 2009) (“[W]e deem this issue waived due to inadequate briefing.”).

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The Marascalcos then appealed the Commissioner’s determination to the

United State Tax Court. The Tax Court reviewed the Commissioner’s

Collections Due Process determination for an abuse of discretion. The Tax Court

held inter alia that the settlement officer did not abuse her discretion when she

refused the Marascalcos’ alternative installment plan. In addition to the

conclusions contained in the Commissioner’s appeals office’s determination, the

Tax Court cited arguments presented by the Commissioner in its post-trial brief.

The Commissioner argued that the Marascalcos’ demonstrated pattern of nonpayment weighed against allowing them to pay over a ten-year period because

of the risk of additional accruals should their pattern of non-payment continue.

The Tax Court held that there had been no abuse of discretion and entered its

decision in favor of the Commissioner. The Marascalcos timely appealed the Tax

Court’s decision and we have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1).

1. The Marascalcos first argue that the Commissioner’s settlement officer

abused her discretion when she refused the Marascalcos’ alternate payment plan

as evidenced by her lack of explanation underlying the determination. Section

6159(a) of the Tax Code states that “[t]he Secretary is authorized to enter into

written agreements with any taxpayer under which such taxpayer is allowed to

make payment on any tax in installment payments if the Secretary determines

that such agreement will facilitate full or partial collection of such liability.”

26 U.S.C. § 6159(a). The Secretary’s decision is discretionary, unless the

taxpayer falls into certain categories not relevant here. § 6159(c); see also

26 C.F.R. § 301.6159-1(c) (“[T]he Commissioner has the discretion to accept or

reject any proposed installment agreement.”). Section 6330, which provides for

the Collections Due Process hearing, outlines the factors to be considered at the

hearing. One of the factors is “whether any proposed collection action balances

the need for the efficient collection of taxes with the legitimate concern of the

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person that any collection action be no more intrusive than necessary.”

§ 6330(c)(3)(C). The Marascalcos contend that the written determination of the

Commissioner lacked any explanation of what factors, if any, the settlement

officer considered when she refused the Marascalcos’ alternate installment plan

proposal. We disagree. The determination stated that the settlement officer

reviewed the collection history of the tax years in question and the amount of the

Marascalco’s disposable income and that she determined the Marascalcos had

the current ability to pay their liability in full. Additionally, the determination

stated that the Commissioner has determined that a federal tax lien is a less

intrusive method of collection, because it leaves the taxpayers in possession of

their property. Moreover, despite the fact that the Commissioner was under no

obligation based on the facts of this case to offer an installment plan to the

Marascalcos, the settlement officer did offer a plan, which the taxpayers

rejected. We find no abuse of discretion on the part of the settlement officer.

2. The Marascalcos next argue that the Tax Court erred when it looked

beyond the record in making its determination that the settlement officer did not

abuse her discretion when she refused the Marascalcos’ alternate installment

plan. We need not address whether the Tax Court was limited to reviewing the

written record or could admit some testimony regarding the Commissioner’s

reasoning, see Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91

S. Ct. 814, 825 (1971) (holding that when the bare record is insufficient, the

district court may take testimony from the decisionmakers regarding the

reasoning behind the decision), because, as explained above, based solely on the

written determination of the settlement officer, we find that she did not abuse

her discretion.

AFFIRMED.

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