NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit 

06-3229 

HEATHER BENNETT, 

 Petitioner, 

v. 

DEPARTMENT OF THE TREASURY, 

 Respondent. 

___________________________ 

 DECIDED: October 5, 2006 

___________________________ 

Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit 

Judge. 

PER CURIAM. 

The Merit Systems Protection Board (Board) affirmed the decision of the Internal 

Revenue Service’s (IRS) to terminate Ms. Heather Bennett for failure to timely pay her 

2002 federal income taxes. Finding no reversible error, this court affirms. 

I 

Until her termination, the IRS employed Ms. Bennett as a Tax Examining 

Technician. In that capacity, Ms. Bennett reviewed and verified the accuracy of federal 

personal income tax returns by comparing those returns with information the IRS 

independently received from payers such as banks and employers. Ms. Bennett timely 

filed her own tax returns for tax years 2000 and 2001. Then a routine match of payroll 

and tax account records by the Employee Tax Compliance Section (ETCS) revealed her 
failure to timely pay the taxes owed in those years. On February 23, 2004, Ms. Bennett 

received a fifteen-day suspension for not fully satisfying the federal personal income tax 

obligations. 

On February 14, 2005, a second routine match of payroll and tax account

records by the ETCS revealed Ms. Bennett did not timely pay her taxes for the 2002 tax 

year. In response to the IRS’s request for an explanation, Ms. Bennett informed the IRS 

that she had issues with her mortgage company that affected her tax obligation. On 

May 6, 2005, the operation manager issued a notice proposing Ms. Bennett’s removal 

based on her failure to timely pay her 2002 tax liability. 

II 

This court must affirm any agency action, findings, or conclusions unless they 

are: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance 

with the law; (2) obtained without procedure required by law, rule, or regulation having

been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996); 

Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). The Board may grant a 

petition for review upon discovery of new and material evidence that, despite due

diligence, was not available when the record closed. 5 C.F.R. § 1201.115(d)(1)(2006). 

In arguing against her removal from the IRS, Ms. Bennett argues: (1) removal is

an unduly harsh penalty, (2) she had paid a small installment toward her 2002 tax 

liability, and (3) the failure to pay for the 2000, 2001, and 2002 tax years could have 

been incorporated into a single disciplinary action, rather than two actions. The Board,

however, cited undisputed evidence that the IRS annually advised all employees that 

they had a special obligation to comply with federal tax laws, including timely payment. 

06-3229 2
The Board noted that Ms. Bennett was aware of her obligations. The Board also cited 

testimony of the Field Director for Compliance Services that Ms. Bennett held a frontline 

position in ensuring taxpayer compliance. Thus, her offense struck at the core of the 

agency’s mission. Accordingly, the Field Director had lost confidence in Ms. Bennett’s 

ability to perform her job duties. The Board further found that Ms. Bennett knowingly

and intentionally failed to timely pay all of her 2002 federal personal income tax and this

was clearly inconsistent with her job duties and responsibilities. Finally, while

acknowledging Ms. Bennett’s ongoing financial issues with her mortgage company, the 

Board found no evidence that Ms. Bennett delayed paying her 2002 taxes due to 

financial hardship. 

Regarding the decision to refrain from incorporating Ms. Bennett’s failure to 

timely pay taxes into a single action, the Field Director gave uncontroverted testimony 

that the IRS instituted the initial fifteen-day suspension promptly after receiving 

information from the ETCS regarding tax years 2000 and 2001. The Field Director also

testified that the IRS management had not received the information about Ms. Bennett’s 

failure to timely pay taxes during the 2002 tax year from the ETCS until March or April 

2005, more than one year after the initial fifteen-day suspension. The Board discerned 

no evidence that the IRS improperly manipulated the process to take two separate 

actions rather than a single disciplinary action. 

The record contains substantial evidence to support the Board’s decision to 

affirm the IRS’s removal of Ms. Bennett. Therefore, this court affirms the Board’s 

decision. 

06-3229 3