9th Wants Tax Court To Take On TP Frivolity

[The Observer]

ROBERT B. WISTER,
Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent.

Release Date: SEPTEMBER 26, 2008


NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Tax Ct. No. 10506-06

MEMORANDUM/*/

Appeal from a decision of the
United States Tax Court
Robert A. Wherry, Judge, Presiding

Submitted September 8, 2008/**/

Before: TASHIMA, SILVERMAN, and CALLAHAN, Circuit Judges.

Robert B. Wister appeals pro se from the tax court's order dismissing for lack of subject matter jurisdiction his petition challenging the penalty assessment imposed for filing a frivolous tax return. We have jurisdiction under 26 U.S.C. section 7482(a)(1). We review de novo, Gorospe v. Comm'r, 451 F.3d 966, 968 (9th Cir. 2006), and we vacate and remand.

The tax court concluded that it did not have jurisdiction to redetermine the frivolous return penalty assessed under 26 U.S.C. section 6702 and review the Commissioner's determination to collect the penalty by levy. In light of the subsequent decision in Callahan v. Comm'r, 130 T.C. 3 (2008), we vacate the judgment and remand this matter to the tax court for further consideration.

Each party shall bear its own costs on appeal.

VACATED and REMANDED.

FOOTNOTES

/*/ This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

/**/ The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).