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. Heat her Bennett for failure to timely pay her 2002 federal income taxes. Finding no reversible error, this court affirms

. I Until her termination, the IRS empl oyed Ms. Bennett as a Tax Examining Technician. In that capacity, Ms. Bennett re viewed and verified the accuracy of federal personal income tax returns by compari ng 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 herfailure to timely pay t he taxes owed in thos e 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 ac coun t records by the ETCS r e vealed M s . Bennett di d not timely pay her taxes for the 2002 ta x 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 abus e of discretion, or other wise not in accordance with the law; (2) obtained withou t procedure required by law, rule, or regulation havin g been followed; or (3) unsupport ed by subs tantia l 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. § 1 201.115(d)(1)(2006). In arguing against her remova l from the IRS, Ms. Benne tt argues: (1) removal is an unduly harsh penalty, (2) she had paid a small installment to ward her 2002 tax liability, and (3) the failure to pay for t he 2000, 2001, and 2002 ta x year s could have been incor porated int o a s i ngle di sciplinary action, rather t han two actions. The Board, however, c i ted undisputed evidence that th e IRS annually adv is ed all employees that they had a special obligation to comply with federal t a x laws, includ ing tim e ly payme nt.

06-3229 2The Board noted that Ms. Benne tt was aware of her obligatio ns. The Board also cited testimony of the Field Director for Compliance Services that Ms. Bennett held a frontline position in ensuring taxpay er compliance. Thus, her offens e struck at the core of the agency’s mission. Accordingly, the Field Dir ector had lost confidence in Ms. Bennett’s ability to perform her job duties. The B oard further found that Ms. Bennett knowingly and intentionally failed to time ly pay all of her 2002 federal personal income t a x and this was cle a rly incons istent wit h her job duties and respons ib ilities. Finally, while acknowledging Ms. Bennett’s ongoing financi al issues with her m o rtgage company, the Board found no evidence that Ms. Benne tt delayed paying her 2002 taxes due to financial hardship. Regarding the decision to re frain from incorporating Ms. Bennett’s failure to timely pay taxes into a single ac tion, t he Field Director gave uncontroverted testimony that the IRS institut ed the initial fifteen-day suspension promptly after receiving information from the ETCS regarding tax year s 2000 and 2001. The F i eld Director als o testified that the IRS management had not received the information about Ms. Bennett’s failure to timely pay taxes during the 2002 ta x year from the ETCS until March or April 2005, more than one y ear afte r the initial fifteen-day sus pension. T he Board discerned no evidenc e that the IRS im properly manipulated the proc ess to take tw o separate actions rather than a single disciplinary action. The record contains substantial evi dence to support the Board’s decis ion to affirm the IRS’s removal of Ms. Bennett. Therefore, this court affirms the Board’s decision.

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