*After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ORVIL GENE THOMPSON, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 96-9019 (D.C. No. 20937-94) (United States Tax Court)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges. The Respondent-Appellee Commissioner of Internal Re venue (the "Commissioner") determined a deficiency in Petition er-Appellant Orvil G. Thompson's ("Thompson") 1981 federal income tax in the amount of $4,905 plus penalties, interest, and self-employment tax. The deficiency stemmed from Thompson's earnings of $18,152.54 in unreported inc ome as an encyclopedia- 2 -

salesman in 1981. Thompson protested the Commissio ner's deficiency calculation to the United States Tax Court sitting by designati on at Oklahoma City, Oklahoma. Thompson contended that his failure to p ay the tax owed in a timely manner should be excused due to incompetence result ing from a medical condition. Thompson also argued that he should be entitled to various business expense, mortgage interest payment, and real estate tax payment deductions to reduce the total amount of tax owed. The tax court found that Thompson intentionally failed to file his 1981 federal incom e tax returns and was liable for penalties and interest as a result of his delinquen cy. The tax court did allow a $2,000 deduction for business expenses, but ruled t hat Thompson failed to produce any evidence to justify a deduction for mor tgage interest or real estate tax payments. The tax court ultimately assessed Thomps on $5680 in tax deficiency and penalties, less $1,134 in payments Thompson had already made, but plus interest. Thompson now appeals. We affirm. We review tax court decisions "in the same manner a nd to the same extent as decisions of the district courts in civil action s tried without a jury." NCAA v. Commissioner of Internal Revenue , 914 F.2d 1417, 1420 (10th Cir. 1990). Thompson claims that the district court erred in co ncluding that the Commissioner properly notified Thompson of the deficiency and in refusing to find that his1 Thompson also suggests that he should have been entitled to a jury trial.

Because Thompson never made a request for a jury trial to the tax court, we need not consider this issue on appeal. - 3 - failure to file a 1981 return should be excused forhealth reasons. 1 Because we do not find that the tax court's factual conclusions a re clearly erroneous, we affirm the tax court's ruling. First, although the Commis sioner conceded that it initially had mailed notice of the deficiency to the incorrec t address, Thompson admitted receiving a subsequent deficiency notice and all pe nalties imposed by the Commissioner in this case only date back to the lat er deficiency notice. Second, the doctor's report introduced into evidence by Tho mpson shows only that he suffered from a mild, treatable sleep disorder that would not excuse him from filing a tax return for 1981, especially since he m anaged to earn a sizeable income as an encyclopedia salesman while suffering from hi s ailment. As a result, we AFFIRM for substantially the same reasons relied up on by the tax court. The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge