 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 26, 2013               Decided June 20, 2014

                         No.  13-1090

        PETER KURETSKI AND KATHLEEN KURETSKI,
                     APPELLANTS

                              v.

      COMMISSIONER OF INTERNAL REVENUE SERVICE,
                      APPELLEE


              On Appeal from the Decision and
             Order of the United States Tax Court


    Tuan N. Samahon argued the cause for appellants.  With
him on the briefs were Carlton M. Smith, Frank Agostino, and
John P.L. Miscione. 

    Bethany B. Hauser, Attorney, U.S. Department of Justice,
argued the cause for appellee.  With her on the brief was Teresa
E. McLaughlin, Attorney. 

   Before: SRINIVASAN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges. 
                                2

    Opinion for the Court filed by Circuit Judge SRINIVASAN. 

     SRINIVASAN, Circuit Judge: Peter and Kathleen Kuretski
owed more than $22,000 in federal income taxes for the 2007
tax year.  They paid none.  The Internal Revenue Service
assessed the unpaid amount plus penalties and interest, and then
attempted to collect from the Kuretskis by means of a levy on
the couple’s home.  The Kuretskis unsuccessfully challenged the
proposed levy in the Tax Court. 

     The Kuretskis now contend that the Tax Court judge may
have been biased in favor of the IRS in a manner that infringes
the constitutional separation of powers.  They point to 26
U.S.C. § 7443(f), which enables the President to remove Tax
Court judges on grounds of “inefficiency, neglect of duty, or
malfeasance in office.”  According to the Kuretskis, Tax Court
judges exercise the judicial power of the United States under
Article III of the Constitution, and it violates the constitutional
separation of powers to subject any person clothed with Article
III authority to “interbranch” removal at the hands of the
President.  The Kuretskis thus ask us to strike down 26 U.S.C.
§ 7443(f), vacate the Tax Court’s decision, and remand their
case for re-decision by a Tax Court judge free from the threat of
presidential removal and hence free from alleged bias in favor
of the Executive Branch. 

     To our knowledge, this is the first case in any court of
appeals to present the question of whether 26 U.S.C. § 7443(f)
infringes the constitutional separation of powers.  We answer
that question in the negative.  Even if the prospect of
“interbanch” removal of a Tax Court judge would raise a
constitutional concern in theory, there is no cause for concern in
fact: the Tax Court, in our view, exercises Executive authority
as part of the Executive Branch.  Presidential removal of a Tax
Court judge thus would constitute an intra—not inter—branch
                                3

removal.  We also reject the Kuretskis’ remaining challenges to
the Tax Court’s disposition of their case. 

                                I.

                               A.

     When the Internal Revenue Service determines that a
taxpayer owes more to the federal government than the taxpayer
has paid, the IRS may make an assessment recording the
taxpayer’s outstanding liability.  See 26 U.S.C. § 6201; United
States v. Fior D’Italia, Inc., 536 U.S. 238, 243 (2002).  An
assessment is “essentially a bookkeeping notation” made when
the IRS “establishes an account against the taxpayer on the tax
rolls.”  Laing v. United States, 423 U.S. 161, 170 n.13 (1976). 
Upon issuance of an assessment, the federal government
acquires a lien on all property belonging to the delinquent
taxpayer.  See 26 U.S.C. §§ 6321, 6322. “‘ A federal tax lien,
however, is not self-executing,’ and the IRS must take
‘affirmative action to enforce collection of the unpaid taxes.’” 
EC Term of Years Trust v. United States, 550 U.S. 429, 430-31
(2007) (alteration and ellipsis omitted) (quoting United States v.
Nat’l Bank of Commerce, 472 U.S. 713, 720 (1985)).  One of the
IRS’s “principal tools” for collecting unpaid taxes is a “levy,” a
“legally sanctioned seizure and sale of property.”  Id. at 431
(internal quotation marks omitted). 

     Until 1921, taxpayers had no pre-assessment opportunity to
dispute the amount they owed the Treasury.  Nor could they
challenge a levy before its imposition.  A taxpayer’s only
recourse was to pay the disputed amount and then bring a refund
suit against the tax collector or the United States.  See Flora v.
United States, 362 U.S. 145, 151-52 (1960); Burns, Stix
Friedman & Co. v. Comm’r, 57 T.C. 392, 394 n.7 (1971). 
                               4

     The Revenue Act of 1921 for the first time required giving
taxpayers pre-assessment notice of a deficiency.  The 1921 Act
also provided that “[o]pportunity for hearing shall be granted”
before assessment of the tax.  Revenue Act of 1921, ch.  136,
§ 250(d), 42 Stat.  227, 266.  But it was not until 1924 that
Congress created a tribunal separate from the Bureau of Internal
Revenue (as the IRS was then known) to hear taxpayers’ pre-
assessment appeals.  See Harold Dubroff, The United States Tax
Court: An Historical Analysis, 40 Alb.  L. Rev. 7, 64-66 (1975);
see also John Kelley Co. v. Comm’r, 326 U.S. 521, 527-28
(1946). 

    The Revenue Act of 1924 established the “Board of Tax
Appeals” as “an independent agency in the executive branch of
the Government.”  Revenue Act of 1924, ch.  234, § 900(a), (k),
43 Stat.  253, 336, 338.  The Act provided for the President to
appoint members of the Board to ten-year terms with the advice
and consent of the Senate.  Id. § 900(b), 43 Stat.  at 336-37.  The
Act also stated that “[a]ny member of the Board may be
removed by the President for inefficiency, neglect of duty, or
malfeasance in office, but for no other reason.”  Id. at 337.  In
1926, Congress extended the term of Board members to twelve
years and amended the removal provision to guarantee “notice
and opportunity for a public hearing” before the President could
remove a Board member for cause.  Revenue Act of 1926, ch. 
27, § 1000, 44 Stat.  9, 105-06.  The 1926 Act also made the
Board’s decisions directly reviewable by the circuit courts of
appeals.  Id. § 1001(a), 44 Stat.  at 109-10. 

    In 1942, Congress changed the name of the Board to “The
Tax Court of the United States” and declared that the court’s
members “shall be known” as “judges.”  See Revenue Act of
1942, ch.  619, § 504(a), 56 Stat.  798, 957.  But the 1942 Act
otherwise left intact the provisions governing the former Board
of Tax Appeals. 
                                5


     More than a quarter of a century later, Congress enacted a
series of additional changes to the statutes governing the Tax
Court.  See Tax Reform Act of 1969, Pub.  L. No.  91-172,
§§ 951-962, 83 Stat.  487, 730-36.  The 1969 Act amended the
statute addressing the status of the court to read:

     There is hereby established, under article I of the
     Constitution of the United States, a court of record to
     be known as the United States Tax Court.  The
     members of the Tax Court shall be the chief judge and
     the judges of the Tax Court. 

Id. § 951, 83 Stat.  at 730 (codified at 26 U.S.C. § 7441).  The
1969 Act extended the term of Tax Court judges from twelve
years to fifteen years.  See Pub.  L. No.  91-172, § 952, 83 Stat.  at
730.  Congress did not, however, alter the provision allowing for
presidential removal of Tax Court judges.  The removal statute
remains in place today, and states:

     Judges of the Tax Court may be removed by the
     President, after notice and opportunity for public
     hearing, for inefficiency, neglect of duty, or
     malfeasance in office, but for no other cause. 

26 U.S.C. § 7443(f).  It appears that no President has ever
sought to remove a member of the Tax Court or the Board of
Tax Appeals.  See Deborah A. Geier, The Tax Court, Article III,
and the Proposal Advanced by the Federal Courts Study
Committee: A Study in Applied Constitutional Theory, 76
Cornell L. Rev. 985, 994 n.54 (1991). 

     After the 1969 Act, the Tax Court continued to provide a
pre-assessment forum for taxpayers to challenge the IRS’s
deficiency determinations.  Upon making an assessment,
                               6

however, the IRS could levy on a delinquent taxpayer’s property
without any additional opportunity for a hearing.  See United
States v. Nat’l Bank of Commerce, 472 U.S. 713, 720 (1985);
United States v. Rodgers, 461 U.S. 677, 682-83 (1983).  That
changed in 1998, when Congress established the “collection due
process” hearing procedure “to temper ‘any harshness’” caused
by the IRS’s ability to levy on a taxpayer’s property before the
taxpayer could challenge the collection action.  Byers v.
Comm’r, 740 F.3d 668, 671 (D.C. Cir.  2014) (quoting Olsen v.
United States, 414 F.3d 144, 150 (1st Cir.  2005)); Internal
Revenue Service Restructuring and Reform Act of 1998, Pub.  L.
No.  105-206, § 3401(b), 112 Stat.  685, 747-48 (codified as
amended at 26 U.S.C. § 6330). 

     Under the 1998 Act, the IRS must give thirty days’ notice
before levying on any property to collect unpaid taxes.  26
U.S.C. § 6330(a).  During those thirty days, the taxpayer may
request a collection-due-process hearing before the IRS Office
of Appeals, at which the taxpayer may raise “any relevant issue
relating to the unpaid tax or the proposed levy.”  Id.
§ 6330(b)(1), (c)(2).  If dissatisfied with the result of a
collection-due-process hearing, the taxpayer may appeal to the
Tax Court.  See id. § 6330(d)(1).  The Tax Court’s decisions in
collection-due-process cases are subject to review in this Court. 
Byers, 740 F.3d at 675-77. 

                               B.

     On April 15, 2008, Peter and Kathleen Kuretski of Staten
Island, N.Y., filed a joint federal income tax return for 2007 on
which they reported a tax liability of $24,991 and claimed a
withholding credit of $2856.  The Kuretskis did not include any
payment of the liability reported on their return.  Because the
Kuretskis did not dispute the amount they owed, the IRS
assessed the balance shown on the return along with penalties
                                7

and interest.  In October 2008, the IRS notified the Kuretskis
that they owed $23,601.50 to the United States Treasury, and the
IRS told the Kuretskis that it intended to levy on their property
thirty days later unless they paid the amount due. 

     The Kuretskis, through their counsel, filed timely requests
for a collection-due-process hearing on the ground that “a levy
would create a burden and hardship” for the couple.  The
Kuretskis submitted an “offer in compromise,” proposing to pay
$1000 in five monthly installments of $200 to settle their
outstanding tax liabilities, and they also asked for an abatement
of penalties.  See 26 C.F.R. § 301.7122-1 (procedure for
compromises); see also id. § 301.6651-1(c) (procedure for
abatement of penalties based on reasonable cause for failure to
pay). 

    In a letter to the Kuretskis’ attorney dated April 14, 2010, an
IRS settlement officer rejected the Kuretskis’ offer in
compromise.  The letter explained that the Kuretskis’ equity in
their home rendered the offer “unacceptable as an alternative for
collection.”  The settlement officer later told the Kuretskis’
attorney that the IRS might be willing to accept a full-payment
installment agreement under which the Kuretskis would pay
$250 a month for the next nine years. 

     On June 8, 2010, the Kuretskis’ attorney advised the IRS
that her clients continued to seek a partial-payment agreement
instead of the full-payment installment plan.  On June 28, the
Kuretskis and their attorney met with the settlement officer, but
did not then (or later) accept the full-payment installment offer. 
On July 7, 2010, the settlement officer closed the Kuretskis’
case file.  An IRS appeals team manager approved the
settlement officer’s decision the next day, and the IRS sent a
notice of determination to the Kuretskis on July 20 informing
them that their requests for a compromise and an abatement of
                               8

penalties had been rejected.  The Kuretskis appealed to the Tax
Court.  See 26 U.S.C. § 6330(d)(1) (right to Tax Court review of
IRS’s collection-due-process determination). 

                              C.

     On September 12, 2011, the Kuretskis’ case was tried
before the Tax Court.  As is relevant here, the Kuretskis,
represented by new counsel, argued that the IRS settlement
officer abused her discretion by closing their case file and
issuing a notice of determination even though the parties were
on the verge of reaching agreement on an alternate schedule for
installment payments.  The IRS settlement officer, however,
testified that she had no recollection of any discussions on an
alternate schedule, and that she had concluded by early July
2010 that she could no longer keep open the $250-a-month offer
that had been on the table since April of that year.  The Tax
Court found that the “weight of the evidence” supported the
settlement officer’s account.  Mem.  Findings of Fact & Op.  at
10.  According to the Tax Court, the settlement officer had
maintained a “firm stance” on the $250 figure through several
months of negotiations, and an IRS officer “is not obligated to
negotiate indefinitely.”  Id. at 11. 

     The Kuretskis also alleged that they should avoid any
liability for late-payment penalties because they had reasonable
cause for their failure to pay.  See 26 U.S.C. § 6651(a)(2).  The
Tax Court rejected that argument.  The Tax Court noted that the
Kuretskis bore the burden of proof on this issue and concluded
that the Kuretskis had failed to carry their burden.  The Tax
Court did find for the Kuretskis on one issue, overturning an
assessed penalty of $972 for underpayment of estimated tax
under 26 U.S.C. § 6654. 

    One month after the Tax Court’s decision, the Kuretskis
                                9

filed a motion for reconsideration and a motion to vacate the
decision.  The Kuretskis argued for the first time that the statute
allowing for presidential removal of Tax Court judges, 26
U.S.C. § 7443(f), violates Article III of the Constitution.  The
Kuretskis asked the Tax Court to find § 7443(f) unconstitutional,
and then to decide the case again “free of ‘the improper threat of
interbranch removal.’”  Order at 1-2 (Mar. 4, 2013) (quoting
Kuretskis’ argument). 

    On March 4, 2013, the Tax Court denied both motions.  The
court declined to address the Kuretskis’ Article III argument,
concluding that they had failed to explain why they waited to
raise the argument until after the court’s initial decision.  The
Kuretskis appealed to this Court, and the parties stipulated that
the D.C. Circuit is the proper venue for review.  See 26 U.S.C.
§ 7482(b)(2) (Tax Court decisions may be reviewed by any
federal court of appeals designated by the IRS and the taxpayer
“by stipulation in writing”). 

                               II. 

     The Kuretskis challenge the Tax Court’s decision on both
constitutional and nonconstitutional grounds.  As to the latter,
the Kuretskis argue that the Tax Court committed clear error in
finding them liable for late-payment penalties under 26 U.S.C.
§ 6651(a)(2).  We first take up that challenge before addressing
the constitutional claims. 

     Under § 6651(a)(2), taxpayers who fail to pay their income
taxes on time are liable for an additional 0.5% of the amount due
for each additional month of nonpayment, up to a maximum of
25%.  A taxpayer may gain relief from liability for late payment
by showing “that such failure is due to reasonable cause and not
due to willful neglect.”  26 U.S.C. § 6651(a)(2).  The taxpayer
“must make an affirmative showing of all facts alleged as a
                                 10

reasonable cause for his failure to . . .  pay such tax on time in the
form of a written statement containing a declaration that it is
made under penalties of perjury.”  26 C.F.R. § 301.6651-1(c)(1)
(emphasis added).  The written statement “should be filed with
the district director or the director of the service center with
whom the [taxpayer’s] return is required to be filed.”  Id.

     The Kuretskis contend that they “clearly had reasonable
cause” for their failure to pay their taxes on time, thus entitling
them to penalty relief under § 6651(a)(2).  Pet’rs’ Br.  49.  The
Kuretskis, however, have never submitted a written statement
under penalty of perjury explaining why they had reasonable
cause for their nonpayment.  They raise no challenge to the
validity of the regulation requiring a written statement under
penalty of perjury as a prerequisite for penalty abatement.  Cf. 
Mayo Found.  for Med.  Educ. &  Research v. United States, 131
S. Ct.  704, 712-16 (2011) (Chevron deference to IRS
regulations).  The regulation was adopted after notice and
comment, see 36 Fed.  Reg.  13,594, 13,596 (July 22, 1971), and
the Kuretskis do not dispute its applicability to the penalty
abatement issue in their case.  See Pet’rs’ Br.  50-51 (citing 26
C.F.R. § 301.6651-1(c)(1)).  We see no basis for excusing their
failure to comply with a regulation they concede to be
applicable.  See, e.g., Desabato v. United States, 538 F. Supp.  2d
422, 426 n.6 (D. Mass. 2008) (“Failure to submit such a written
statement to the IRS precludes a plaintiff from making a
‘reasonable cause’ showing for the first time in federal court.”); 
Brown v. United States, 43 Fed.  Cl.  463, 467 (1999) (taxpayer
liable for late-payment penalty where he failed to submit the
written statement required under 26 C.F.R. § 301.6651-1(c)(1)). 
We therefore find no error in the Tax Court’s holding that the
Kuretskis owe late-payment penalties under 26 U.S.C.
§ 6651(a)(2).  And because the Kuretskis’ failure to comply with
the regulation affords a sufficient basis for upholding the
imposition of late-payment penalties under § 6651(a)(2), we
                                11

need not consider the Kuretskis’ remaining arguments
concerning the application of that provision against them. 

                                III. 

     The Kuretskis’ principal contention on appeal is that the
prospect of presidential removal of Tax Court judges under 26
U.S.C. § 7443(f) violates the constitutional separation of
powers.  The IRS, for its part, initially advances three reasons
for declining to reach the merits of the Kuretskis’ separation-of-
powers argument.  We first consider (and reject) those asserted
reasons before turning to the merits. 

                                A.

     The IRS’s first asserted basis for declining to reach the
Kuretskis’ separation-of-powers argument is that they forfeited
the claim by failing to raise it until their motion for
reconsideration.  The general rule in Tax Court cases is “not to
consider an argument raised for the first time in a motion for
reconsideration.”  Cerand & Co. v. Comm’r, 254 F.3d 258, 260
(D.C. Cir.  2001).  But the Supreme Court has recognized an
exception to the general rule: an appellate court may exercise
its discretion to hear “a constitutional challenge that is neither
frivolous nor disingenuous” if the “alleged defect . . .  goes to the
validity of the Tax Court proceeding that is the basis for th[e]
litigation.”  Freytag v. Comm’r, 501 U.S. 868, 879 (1991).  In
that situation, the “disruption to sound appellate process entailed
by entertaining objections not raised below” may be outweighed
by “‘the strong interest of the federal judiciary in maintaining
the constitutional plan of separation of powers.’”  Id. (quoting
Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962) (plurality
opinion)). 
                                12

     Just as the Supreme Court in Freytag elected to consider a
belated constitutional challenge to the validity of a Tax Court
proceeding, id., we do so here.  In Freytag, as here, the
petitioners raised a nonfrivolous constitutional challenge to the
validity of a Tax Court proceeding after the Tax Court’s initial
decision, and the petitioners’ claim implicated the federal
judiciary’s strong interest in maintaining the separation of
powers.  The IRS, apparently attempting to suggest that the
Kuretskis’ separation-of-powers claim is “frivolous,”
characterizes the Kuretskis’ argument as “of a type that has been
repeatedly rejected.”  Resp’t Br.  40 (citing Nash Miami Motors,
Inc. v. Comm’r, 358 F.2d 636 (5th Cir.  1966); Burns, Stix
Friedman & Co., 57 T.C. 392; and Parker v. Comm’r, 724 F.2d
469 (5th Cir.  1984)).  None of the decisions on which the IRS
relies, however, considered the removal power argument raised
by the Kuretskis.  Nor does this case involve “sandbagging”
concerns of the sort that the Supreme Court noted in Stern v.
Marshall, 131 S. Ct.  2594, 2608 (2011), in declining to consider
an argument that the bankruptcy court lacked statutory authority
to resolve the respondent’s defamation claim.  In Stern, a timely
objection to the bankruptcy court’s statutory authority could
have led to the consideration of the claim in federal district
court.  See 28 U.S.C. § 157(b)(5).  Here, by contrast, in light of
the Tax Court’s exclusive jurisdiction over collection due
process appeals, there is no other forum in which the Kuretskis’
appeal could have been considered.  See 26 U.S.C. § 6330(d)(1). 

     Second, the IRS argues that the Kuretskis waived any pre-
payment challenge to the constitutionality of the Tax Court
proceedings by seeking relief in the Tax Court in the first place. 
Although Article III confers on litigants a “personal right” to
“have claims decided before judges who are free from potential
domination by other branches of government,” that right is
“subject to waiver, just as are other personal constitutional rights
that dictate the procedures by which civil and criminal matters
                                13

must be tried.”  Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833, 848-49 (1986) (internal quotation marks omitted). 
But aside from any “personal right” that they assert, the
Kuretskis’ arguments also implicate a separate interest protected
by Article III: “‘the role of the independent judiciary within the
constitutional scheme of tripartite government.’”  Id. at 848
(quoting Thomas v. Union Carbide Agric.  Prods.  Co., 473 U.S.
568, 583 (1985)).  And when such a “structural principle is
implicated in a given case, . . .  notions of consent and waiver
cannot be dispositive because the limitations serve institutional
interests that the parties cannot be expected to protect.”  Id. at
850-51.  In Schor, the Supreme Court thus found that the
respondent’s decision to seek relief in the CFTC rather than in
federal court amounted to a waiver of his claim under Article III
of a “personal right” to “an impartial and independent federal
adjudication,” 473 U.S. at 848, but that he did not (and could
not) thereby waive his “structural” claim, id. at 850-51. 

     The IRS errs in resting its waiver argument on McElrath v.
United States, 102 U.S. 426 (1880).  In McElrath, a retired
Marine Corps officer sued the government in the Court of
Claims for back pay, and the government asserted a
counterclaim on the ground that the officer had received more
than he was entitled to be paid.  Id. at 435-36, 440-41.  After the
Court of Claims rendered judgment in favor of the government
on its counterclaim, the officer argued in the Supreme Court that
the entry of judgment without a jury trial violated the Seventh
Amendment.  Id. at 439-40.  The Supreme Court affirmed,
observing that “if [a litigant] avails himself of the privilege of
suing the government in the special court organized for that
purpose . . . ,  he must do so subject to the conditions annexed by
the government to the exercise of the privilege.”  Id. at 440.  As
the Court later explained in Schor, however, the “right to trial by
jury in civil cases”—at issue in McElrath—is one of the
“personal constitutional rights” that is “subject to waiver.” 
                                  14

Schor, 478 U.S. at 848-49.  Because the Kuretskis raise a
structural claim in addition to any “personal” claim akin to the
one asserted in McElrath, they did not waive their structural
challenge to the Tax Court proceedings by seeking relief in that
court.  See, e.g., Waldman v. Stone, 698 F.3d 910, 918 (6th Cir. 
2012). 

     Finally, the IRS asserts that the Kuretskis lack Article III
standing to challenge the presidential removal of Tax Court
judges.  To establish Article III standing, the Kuretskis must
show (i) that they have suffered an “injury in fact,” (ii) that the
injury is “fairly traceable to the challenged action” of the IRS,
and (iii) that it is “likely . . .  that the injury will be redressed by
a favorable decision.”  Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992) (alteration, ellipsis, and internal quotation
marks omitted).  The proposed levy on the Kuretskis’ home
undoubtedly qualifies as an “injury in fact” that is fairly
traceable to the IRS, but the IRS argues that the Kuretskis fail to
meet the redressability requirement.  This Court, however, could
grant the Kuretskis adequate redress by striking down 26 U.S.C.
§ 7443(f) and then remanding the case to the Tax Court for a
new trial before a judge no longer subject to the threat of
presidential removal.  We granted comparable relief in
Intercollegiate Broadcasting System, Inc. v. Copyright Royalty
Board, 684 F.3d 1332, 1340 (D.C. Cir.  2012).  After holding
that a statutory provision limiting the ability of the Librarian of
Congress to remove judges from the Copyright Royalty Board
was unconstitutional, we remanded the case to the Board so that
the appellants’ claims could be heard by a constitutionally valid
tribunal.  Id. at 1340-42.  Although Intercollegiate Broadcasting
System involved a challenge to a statute restricting removal
while this case involves a challenge to a statute allowing for
removal, we see no reason why that distinction could make a
difference for redressability purposes.  We thus conclude that
                               15

the Kuretskis have standing to bring their separation-of-powers
claim, and we proceed to consider the merits of the issue. 

                               B.

     In support of their argument that presidential removal of
Tax Court judges violates the constitutional separation of
powers, the Kuretskis’ “primary position” is that the Tax Court
exercises “judicial power” under Article III of the Constitution. 
In the alternative, the Kuretskis contend that the Tax Court is
part of the Legislative Branch.  Either way, the Kuretskis argue,
presidential removal of Tax Court judges “leaves those judges
in an unconstitutional bind” because they “must fear removal
from an actor in another branch.”  Pet’rs’ Br.  11, 33. 

     The Kuretskis’ challenge rests on the assumption that
“interbranch removal” is unconstitutional under Bowsher v.
Synar, 478 U.S. 714 (1986). “ Nothing in Bowsher, however,
suggests that one Branch may never exercise removal power,
however limited, over members of another Branch.”  Mistretta
v. United States, 488 U.S. 361, 411 n.35 (1989).  We need not
explore the precise circumstances in which interbranch removal
may present a separation-of-powers concern because this case
does not involve the prospect of presidential removal of officers
in another branch.  Rather, the Kuretskis have failed to persuade
us that Tax Court judges exercise their authority as part of any
branch other than the Executive.  Consequently, if a President
were someday to exercise the authority under 26 U.S.C.
§ 7443(f) to remove a Tax Court judge for cause, the removal
would be entirely consistent with separation-of-powers
principles. 
                                16

                                1. 

    The Kuretskis’ principal submission is that Tax Court
judges exercise the judicial power of the United States under
Article III of the Constitution.  We disagree. 

     Article III prescribes that the “judicial Power of the United
States” is “vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish.”  U.S. Const.  art.  III, § 1.  Judges of those courts “hold
their Offices during good Behaviour,” id., which means that they
are removable only via impeachment and conviction.  See
United States ex rel.  Toth v. Quarles, 350 U.S. 11, 16 (1955). 
That arrangement aims “to give judges maximum freedom from
possible coercion or influence by the executive or legislative
branches of the Government.”  Id.

    “Article III could neither serve its purpose in the system of
checks and balances nor preserve the integrity of judicial
decisionmaking if the other branches of the Federal Government
could confer the Government’s ‘judicial Power’ on entities
outside Article III.”  Stern, 131 S. Ct.  at 2609.  As a result,
“[w]hen a suit is made of ‘the stuff of the traditional actions at
common law tried by the courts at Westminster in 1789,’ and is
brought within the bounds of federal jurisdiction, the
responsibility for deciding that suit rests with Article III judges
in Article III courts.”  Id. (citation omitted) (quoting N. Pipeline
Constr.  Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90 (1982)
(Rehnquist, J., concurring in the judgment)). 

    At the same time, the Supreme Court has recognized a
“category of cases involving ‘public rights’” that Congress can
constitutionally assign to non-Article III tribunals.  Id. at 2610
(quoting Northern Pipeline, 458 U.S. at 67 (plurality opinion)). 
The “public rights” category comprises disputes that “‘could be
                                17

conclusively determined by the Executive and Legislative
Branches’” without judicial intervention.  Thomas v. Union
Carbide Agric.  Prods.  Co., 473 U.S. 568, 589 (1985) (quoting
Northern Pipeline, 458 U.S. at 68).  The “public rights doctrine
reflects simply a pragmatic understanding that, when Congress
selects a quasi-judicial method of resolving matters” that could
be decided with no judicial review, “the danger of encroaching
on the judicial powers is reduced.”  Id.

      Although the precise contours of the “public rights”
doctrine are not fully formed, see Stern, 131 S. Ct.  at 2610;
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51 n.8 (1989),
it is “settled” that the category of public rights includes matters
of “internal revenue” and “taxation,” at least at the pre-
collection stage.  Atlas Roofing Co. v. Occupational Safety &
Health Review Comm’n, 430 U.S. 442, 450-51 & nn.8-9 (1977)
(internal quotation marks omitted); see Crowell v. Benson, 285
U.S. 22, 50-51 (1932); Murray’s Lessee v. Hoboken Land &
Improvement Co., 59 U.S. 272, 284 (1856).  Congress therefore
can constitutionally assign the adjudication of pre-collection tax
disputes to non-Article III tribunals.  See Samuels, Kramer &
Co. v. Comm’r, 930 F.2d 975, 992 (2d Cir.  1991) (“The
relationship between the government and taxpayer plainly gives
rise to public rights and we have no doubt that the resolution of
such disputes can be relegated to a non-Article III forum.”), 
abrogated on other grounds by Freytag, 501 U.S. at 892. 

     Congress undisputedly exercised that option when it
initially established the Tax Court as an Executive Branch
agency rather than an Article III tribunal.  See Revenue Act of
1924 § 900(k), 43 Stat.  at 338 (Board of Tax Appeals
established as independent executive agency); Revenue Act of
1942 § 504(a), 56 Stat.  at 957 (Board renamed “The Tax Court
of the United States,” but status as independent executive
agency unchanged); see also 26 U.S.C. § 1100 (1946).  The
                               18

Kuretskis believe that Congress shifted course in the 1969 Tax
Reform Act, when it adjusted the Tax Court’s formal title from
“Tax Court of the United States” to “United States Tax Court,”
and provided that the Tax Court was “established[] under article
I of the Constitution.”  26 U.S.C. § 7441.  There is no indication,
however, that by prescribing that the Tax Court had been
established under Article I, Congress somehow converted what
had been an Executive Branch tribunal into an Article III court. 
The legislative history in fact indicates a belief and intention
that the Tax Court is not an Article III body.  See S. Rep. No. 
91-552, at 304 n.2 (1969) (“limitations of Article III of the
Constitution, relating to life tenure and maintenance of
compensation,” do not apply to Tax Court judges).  It would
seem clear, then, that the Tax Court is not a part of the Article
III Judicial Branch, and that its judges do not exercise the
“judicial Power of the United States” under Article III. 

     The Supreme Court’s decision in Freytag v. Commissioner,
however, adds a wrinkle to what would otherwise be a
straightforward analysis.  The dispute in Freytag concerned a
statute allowing the Chief Judge of the Tax Court to appoint
“special trial judges” and assign certain cases to them.  See 26
U.S.C. § 7443A. The petitioners in Freytag contended that the
provision for appointment of special trial judges violates the
Appointments Clause of Article II.  That clause grants Congress
the power to “vest the Appointment of . . .  inferior
Officers . . .  in the President alone, in the Courts of Law, or in
the Heads of Departments.”  U.S. Const.  art.  II, § 2, cl.  2.  The
Freytag petitioners argued that “a special trial judge is an
‘inferior Officer’” and that “the Chief Judge of the Tax Court
does not fall within any of the Constitution’s three repositories
of the appointment power.”  Freytag, 501 U.S. at 878 (alteration
omitted).  The Supreme Court rejected that argument.  Four
Justices would have held that the Tax Court is an executive
“Department” and the Chief Judge is its head.  See id. at 920-22
                                19

(Scalia, J., concurring in part and concurring in the judgment). 
A majority of five Justices instead held that the Tax Court is a
“Court of Law” (and, implicitly, that the Chief Judge of the Tax
Court can exercise the appointment power on behalf of the
court).  See id. at 870, 892. 

     The Kuretskis rely substantially on the Freytag majority’s
holding that the Tax Court is a “Court of Law.”  That holding,
however, does not call into question the constitutionality of the
President’s removal power over Tax Court judges under 26
U.S.C. § 7443(f).  A tribunal may be considered a “Court of
Law” for purposes of the Appointments Clause notwithstanding
that its officers may be removed by the President.  The Freytag
Court’s treatment of territorial courts confirms the point.  The
Court indicated that territorial courts constitute “Courts of Law”
for purposes of the Appointments Clause, see Freytag, 501 U.S.
at 892, even though it was by then well settled that the President
may remove judges from territorial courts (including without
cause) if the governing statute allows it.  See Shurtleff v. United
States, 189 U.S. 311, 316 (1903) (“judges of the territorial courts
may be removed by the President”); see also McAllister v.
United States, 141 U.S. 174, 179-91 (1891) (rejecting
constitutional challenge to President Cleveland’s suspension of
Alaska territorial judge). 

     To be sure, the Freytag Court observed that the Tax Court
“exercises a portion of the judicial power of the United States.” 
Freytag, 501 U.S. at 891.  That statement, if considered in
isolation, could be construed to suggest that Tax Court judges
exercise Article III powers.  But the Freytag Court clarified that
“non-Article III tribunals . . .  exercise the judicial power of the
United States,” such that “the judicial power of the United States
is not limited to the judicial power defined under Article III.” 
Id. at 889 (citing Am.  Ins.  Co. v. Canter, 26 U.S. (1 Pet.)  511,
546 (1828)).  The Court therefore used the phrase “judicial
                               20

power” in “an enlarged sense,” not in the particular sense
employed by Article III.  See Murray’s Lessee, 59 U.S. at 280
(“judicial act” in “an enlarged sense” encompasses “all those
administrative duties the performance of which involves an
inquiry into the existence of facts and the application to them of
rules of law”); cf.  City of Arlington v. FCC, 133 S. Ct.  1863,
1877-78 (2013) (Roberts, C.J., dissenting) (administrative
agencies exercise “judicial power” when they “adjudicat[e]
enforcement actions and impos[e] sanctions on those found to
have violated their rules”).  As another court of appeals has
explained, a “central lesson from Freytag is that adjudication by
adversarial proceedings can exist outside the context of Article
III.”  S.C. State Ports Auth.  v. Fed.  Mar. Comm’n, 243 F.3d 165,
171 (4th Cir.  2001), aff’d, 535 U.S. 743 (2002); see Freytag, 501
U.S. at 891 (Tax Court is “an adjudicative body”).  The Freytag
Court, after all, repeatedly compared the Tax Court to the non-
Article III territorial courts.  See id. at 889-90, 892. 

     The Kuretskis argue that the precedents allowing for
presidential removal of territorial judges have little bearing on
their separation-of-powers argument because “territorial courts
do not exercise the judicial power of the United States.”  Pet’rs’
Br.  40-41.  It is true that territorial courts do not exercise “the
judicial power of the United States” in the particular sense
addressed by Article III.  See McAllister, 141 U.S. at 190.  But
the Freytag Court suggests that territorial courts exercise
“judicial power” in the same overarching sense in which the Tax
Court exercises “judicial power,” such that the territorial courts
and the Tax Court are similarly situated for purposes of the
Appointments Clause.  See Freytag, 501 U.S. at 889-90
(territorial court is “one of the ‘Courts of Law’” under
Appointments Clause).  We see no reason why the territorial
courts and the Tax Court are not also similarly situated for
purposes of presidential removal.  Accordingly, we conclude
that the Tax Court’s status as a “Court of Law”—and its
                                21

exercise of “judicial power”—for Appointments Clause
purposes under Freytag casts no doubt on the constitutionality
of the President’s authority to remove Tax Court judges. 

                                2. 

     Even if the Tax Court does not exercise Article III judicial
power, the Kuretskis argue as a fallback position that the Tax
Court functions as part of the Article I Legislative Branch. 
Understandably, the Kuretskis make no attempt to explain how
the Tax Court could conceivably be considered a legislative
body or conceivably be seen to possess legislative power. 
Instead, the Kuretskis suggest that the Tax Court may fall within
the Legislative Branch because it constitutes “an Article I
legislative court.”  We have no disagreement with the
characterization of the Tax Court as an “Article I legislative
court.”  Congress, as explained, amended 26 U.S.C. § 7441 in
1969 to provide that the Tax Court is a “court of record”
established “under article I of the Constitution.”  And the
Freytag Court understood that the “clear intent of Congress” in
the 1969 Act was “to transform the Tax Court into an Article I
legislative court.”  Freytag, 501 U.S. at 888.  But even if the
1969 Act transformed the Tax Court into an Article I legislative
court, it did not thereby transfer the Tax Court to the Legislative
Branch. 

     The Constitution itself “nowhere makes reference to
‘legislative courts’”; the “concept of a legislative court” instead
“derives from the opinion of Chief Justice Marshall in American
Insurance Co. v. Canter.”  Glidden, 370 U.S. at 543-44 (citing
Canter, 26 U.S. (1 Pet.)  511).  In Canter, Chief Justice Marshall
used the phrase “legislative Courts” to describe the territorial
courts of Florida, which at the time had yet to be admitted to the
Union as a state. “ The jurisdiction with which [the Florida
territorial courts] are invested,” according to Chief Justice
                                 22

Marshall, “is not a part of that judicial power which is defined
in the 3d article of the Constitution, but is conferred by
Congress, in the execution of those general powers which that
body possesses over the territories of the United States.” 
Canter, 26 U.S. (1 Pet.)  at 546; cf.  U.S. Const.  art.  IV, § 3, cl.  2
(“Congress shall have Power to . . .  make all needful Rules and
Regulations respecting the Territory . . .  belonging to the United
States”).  Later decisions describe tribunals such as the Court of
Customs Appeals and the superior courts of the District of
Columbia as “legislative courts”; those bodies, like the Florida
territorial courts, were created by Congress pursuant to non-
Article III powers.  See Ex parte Bakelite Corp., 279 U.S. 438,
449-61 (1929); cf.  U.S. Const art.  I, § 8, cl.  1 (“Power To lay
and collect . . .  Duties, Imposts and Excises”); id. art.  I, § 8, cl. 
17 (legislative power “over such District . . .  as may . . .  become
the Seat of the Government of the United States”). 

     A tribunal constitutes a “legislative court” if its power “is
not conferred by the third article of the Constitution, but by
Congress in the execution of other provisions of that
instrument.”  Williams v. United States, 289 U.S. 553, 565-66
(1933).  Congress’s authority to create the Tax Court stems from
two clauses in Article I, Section 8 of the Constitution: the
Taxing and Spending Clause and the Necessary and Proper
Clause.  See U.S. Const.  art.  I, § 8, cl.  1 (“Congress shall have
Power To lay and collect Taxes . . .  to pay the Debts and provide
for the common Defence and general Welfare”); id. art.  I, § 8,
cl.  18 (authority “[t]o make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers”). 
The Tax Court itself has explained that it owes its existence to
Congress’s authority under those Clauses.  See Burns, Stix
Friedman & Co., 57 T.C. at 394-95. 

    The Tax Court’s status as an “Article I legislative court,”
Freytag, 501 U.S. at 888, does not mean that its judges exercise
                                  23

“legislative power” under Article I. Cf.  Whitman v. Am. 
Trucking Ass’ns, 531 U.S. 457, 472-73 (2001) (“legislative
power” consists of decisionmaking authority without any
“‘intelligible principle to which the person or body
authorized . . .  is directed to conform’” (quoting J. W. Hampton,
Jr., & Co. v. United States, 276 U.S. 394, 409 (1928))).  The
Tax Court is in the business of interpreting and applying the
internal revenue laws, see Freytag, 501 U.S. at 891, not in the
business of making those laws.  And the Tax Court’s Article I
origins do not distinguish it from the mine run of Executive
Branch agencies whose officers may be removed by the
President.  After all, every Executive Branch entity, from the
Postal Service to the Patent Office, is established pursuant to
Article I. See U.S. Const.  art.  I, § 8, cl.  7 (Postal Clause); id. art. 
I, § 8, cl.  8 (Copyright and Patent Clause).  The Tax Court no
more exercises Article I powers than do those agencies.  The
Tax Court’s status as an “article I legislative court” therefore
presents no barrier to presidential removal of Tax Court judges. 
See Mistretta, 488 U.S. at 411 n.35 (“the President may remove
a judge who serves on an Article I court”). 

                                  3. 

     We have explained that Tax Court judges do not exercise
the “judicial power of the United States” pursuant to Article III. 
We have also explained that Congress’s establishment of the
Tax Court as an Article I legislative court did not transfer the
Tax Court to the Legislative Branch.  It follows that the Tax
Court exercises its authority as part of the Executive Branch. 

    That conclusion is fully consistent with Freytag.  The
Freytag majority rejected the argument that the Tax Court is an
executive “Department” for purposes of the Appointments
Clause.  See Freytag, 501 U.S. at 888.  But the majority also
made clear that an entity can be a part of the Executive Branch
                               24

without being an executive “Department.”  See id. at 885 (“We
cannot accept the Commissioner’s assumption that every part of
the Executive Branch is a department, the head of which is
eligible to receive the appointment power.”);  id. at 886 (“a
holding that every organ in the Executive Branch is a
department would multiply indefinitely the number of actors
eligible to appoint”).  One of our sister circuits thus understands
Freytag to hold that “the Tax Court is a Court of Law despite
being part of the Executive Branch.”  S.C. State Ports Auth.,  243
F.3d at 171 (emphasis added). 

     The Freytag majority also observed that the Tax Court
“remains independent of the Executive . . .  Branch[],” and in
that sense exercises something other than “executive” power. 
501 U.S. at 891.  We understand that statement to describe the
Tax Court’s functional independence rather than to speak to its
constitutional status.  The Supreme Court has used similar
language to describe “quasilegislative” and “quasijudicial”
agencies such as the Federal Trade Commission, noting that
such agencies are “wholly disconnected from the executive
department” and that their members must “act in discharge of
their duties independently of executive control.”  Humphrey’s
Ex’r v. United States, 295 U.S. 602, 629-30 (1935).  While
“independent,” members of such agencies can be removed by
the President for cause.  See Fed.  Mar. Comm’n v. S.C. State
Ports Auth.,  535 U.S. 743, 773 (2002) (Breyer, J., dissenting on
other grounds) (noting that “[c]onstitutionally speaking, an
‘independent’ agency belongs neither to the Legislative Branch
nor to the Judicial Branch of Government,” and “even
‘independent’ agencies[] are more appropriately considered to
be part of the Executive Branch”).  And the Tax Court is hardly
the sole Executive-Branch “adjudicative body,” Freytag, 501
U.S. at 891, to sit in “independent” judgment of other executive
actors.  See, e.g., 5 U.S.C. § 1204(a) (Merit Systems Protection
Board sits in judgment of other agencies); id. § 7105(g) (Federal
                               25

Labor Relations Authority); 10 U.S.C. § 867 (Court of Appeals
for the Armed Forces reviews decisions of other Defense
Department entities); 29 U.S.C. § 659(c) (Occupational Safety
and Health Review Commission sits in judgment of Secretary of
Labor); 39 C.F.R. § 3001.1 et seq. ( Postal Regulatory
Commission sits in judgment of Postal Service).  Congress may
afford the officers of those entities a measure of independence
from other executive actors, but they remain Executive-Branch
officers subject to presidential removal.  Cf.  City of Arlington,
133 S. Ct.  at 1873 n.4 (“Agencies . . .  conduct
adjudications . . .  and have done so since the beginning of the
Republic.  These activities take . . . ‘ judicial’ form[], but they
are exercises of—indeed, under our constitutional structure they
must be exercises of—the ‘executive Power.’” ( quoting U.S.
Const.  art.  II, § 1, cl.  1)). 

     In relevant respects, the constitutional status of the Tax
Court mirrors that of the Court of Appeals for the Armed Forces. 
The statutes establishing the status of the two courts precisely
parallel one another.  Each provides that the respective court is
a “court of record” “established under article I of the
Constitution.”  10 U.S.C. § 941 (Court of Appeals for the Armed
Forces); 26 U.S.C. § 7441 (Tax Court).  In fact, when Congress
in 1969 enacted that language for the Tax Court, it specifically
sought to bring the Tax Court into alignment with the Court of
Appeals for the Armed Forces (then known as the Court of
Military Appeals).  See S. Rep. No.  91-552, at 304 (“The bill
establishes the Tax Court as a court under Article I of the
Constitution,” and “[a]t the present time, the Court of Military
Appeals is the only other Article I court.”).  In doing so, and in
departing from the prior language describing the Tax Court as
an executive “agency,” Congress aimed to emphasize the Tax
Court’s independence as a “court” reviewing the actions of the
IRS.  See id. at 302 (observing that “it is anomalous to continue
to classify [the Tax Court] with quasi-judicial executive
                               26

agencies that have rulemaking and investigatory functions” as
opposed to a body having “only judicial duties,” and noting
“questions in the minds of some as to whether it is appropriate
for one executive agency to be sitting in judgment on the
determinations of another executive agency”).  And while we
have no need to reach the issue here, Congress, in establishing
those entities as a “court” rather than an “agency,” perhaps also
exempted them from statutes that apply solely to executive
“agencies.”  Cf.  Megibow v. Clerk of the U.S. Tax Court, No.  04-
3321, 2004 U.S. Dist.  LEXIS 17698, at *13-22 (S.D.N.Y. Aug.
31, 2004) (Tax Court is a “court of the United States” and not an
“agency” under the Administrative Procedure Act, 5 U.S.C.
§ 551(1)), aff’d, 432 F.3d 387 (2d Cir.  2005) (per curiam). 

     Congress did not, however, move the Tax Court outside the
Executive Branch altogether.  Indeed, the Supreme Court has
recognized that the Court of Appeals for the Armed Forces is an
“Executive Branch entity” and that its judges are “Executive
officers.”  Edmond v. United States, 520 U.S. 651, 664-65
(1997); see id. at 664 n.2 (finding it “clear that [the Court of
Appeals for the Armed Forces] is within the Executive
Branch”).  Congress sought to—and did—achieve the same
status for the Tax Court. 

                               IV. 

     The Kuretskis raise a separate constitutional challenge to
the IRS’s procedure for collection-due-process hearings.  That
procedure, in the Kuretskis’ view, failed in their case to satisfy
the requirements of the Fifth Amendment’s Due Process Clause. 
We are unpersuaded. 

    “An essential principle of due process is that a deprivation
of life, liberty, or property ‘be preceded by notice and
opportunity for hearing appropriate to the nature of the case.’” 
                               27

Cleveland Bd.  of Educ.  v. Loudermill, 470 U.S. 532, 542 (1985)
(quoting Mullane v. Cent.  Hanover Bank & Trust Co., 339 U.S.
306, 313 (1950)).  The Kuretskis acknowledge that they received
notice of the IRS’s proposed levy and a hearing before the IRS
settlement officer assigned to their case.  The Kuretskis,
however, have a “sneaking suspicion” that the decision to deny
them a penalty abatement was “influenced” by the appeals team
manager who supervised the settlement officer.  Pet’rs’ Br.  54. 
They argue that they should have been afforded an opportunity
to comment on the settlement officer’s written report to her
appeals team manager or “some opportunity to interact” with the
manager before he made a final decision to deny their abatement
request.  Id. at 56. 

    Assuming arguendo that the Due Process Clause generally
requires the IRS to afford a taxpayer some manner of hearing
before imposing a levy, see United States v. James Daniel Good
Real Prop.,  510 U.S. 43, 60-61 (1993), there is no basis for
recognizing a constitutional entitlement for taxpayers to
comment on an IRS settlement officer’s report to her appeals
team manager or present their case directly to the appeals team
manager.  The Kuretskis rely on Ballard v. Commissioner, 544
U.S. 40 (2005), which holds that the Tax Court must disclose the
reports of special trial judges who serve as factfinders in cases
in which Tax Court judges make the ultimate decision.  But the
Court based its holding on its interpretation of the Tax Court
Rules, see id. at 46-47 & n.2, and “express[ed] no opinion” on
whether “the Due Process Clause requires disclosure of a trial
judge’s factfindings that have operative weight in a court’s final
decision,” id. at 64-65. 

     In Gottlieb v. Pena, 41 F.3d 730 (D.C. Cir.  1994), we
rejected a due process claim similar to the one advanced by the
Kuretskis.  There, a Coast Guard lieutenant commander applied
to a Coast Guard board for correction of his military record, and
                               28

the board heard evidence before submitting a recommended
decision to the Secretary of Transportation.  The Secretary was
the final decisionmaker, however, and the plaintiff had no
opportunity to examine the board’s initial decision or make a
submission to the Secretary in light of the board’s
recommendation.  We held that the Coast Guard’s procedures
did not violate the Fifth Amendment Due Process Clause,
concluding that the lieutenant commander had no “entitle[ment]
to input or process past the first ‘tier’ and cannot force the
agency to open its essentially deliberative process.”  Id. at 737
(citing Morgan v. United States, 298 U.S. 468, 481 (1936)); see
also Morgan, 298 U.S. at 481 (“[e]vidence may be taken by an
examiner” and “may be sifted and analyzed by competent
subordinates,” so long as “the officer who makes the
determinations . . .  consider[s] and appraise[s] the evidence
which justifies them”). 

     In any event, regardless of the procedure in the collection-
due-process hearing, the Kuretskis subsequently had an
opportunity to challenge the IRS’s proposed levy in Tax Court,
and also to contest any underlying liability for which they lacked
a prior opportunity to raise a challenge.  See 26 U.S.C.
§ 6330(c)(2), (d)(1).  When a petitioner appeals the IRS’s
proposed levy action to the Tax Court, the levy action is
suspended while the appeal remains pending.  Id. § 6330(e)(1). 
Thus, the Tax Court proceeding itself allows an opportunity for
a pre-deprivation hearing.  Because the Kuretskis make no claim
that the Tax Court proceedings fall short of the Fifth
Amendment Due Process Clause’s requirements, they cannot
prevail on their challenge under that Clause. 

                         * * * * *
   For the foregoing reasons, we affirm the decision of the Tax
Court. 
                                                   So ordered.