*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. See Fed. 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 Revenue (the

"Commissioner") determined a deficiency in Petitioner-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 income as an encyclopedia
- 2 -

salesman in 1981. Thompson protested the Commissioner's deficiency calculation

to the United States Tax Court sitting by designation at Oklahoma City,

Oklahoma. Thompson contended that his failure to pay the tax owed in a timely

manner should be excused due to incompetence resulting 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 income tax returns and was liable for

penalties and interest as a result of his delinquency. The tax court did allow a

$2,000 deduction for business expenses, but ruled that Thompson failed to

produce any evidence to justify a deduction for mortgage interest or real estate tax

payments. The tax court ultimately assessed Thompson $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 and to the same extent

as decisions of the district courts in civil actions 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 concluding that the Commissioner

properly notified Thompson of the deficiency and in refusing to find that his
1

 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 for health reasons.1 Because we do

not find that the tax court's factual conclusions are clearly erroneous, we affirm

the tax court's ruling. First, although the Commissioner conceded that it initially

had mailed notice of the deficiency to the incorrect address, Thompson admitted

receiving a subsequent deficiency notice and all penalties imposed by the

Commissioner in this case only date back to the later deficiency notice. Second,

the doctor's report introduced into evidence by Thompson 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 managed to earn a sizeable income

as an encyclopedia salesman while suffering from his ailment. As a result, we

AFFIRM for substantially the same reasons relied upon by the tax court.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge