NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT JOHN HOBART ZENTMYER, No. 18-72116

Petitioner-Appellant, Tax Ct. No. 5692-17 v.

MEMORANDUM* COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the

United States Tax Court

Submitted October 15, 2019** Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

John Hobart Zentmyer appeals pro se from the Tax Court’s order dismissing for failure to state a claim his petition challenging the Commissioner’s imposition of a levy in a collection action. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo. Grimes v. Comm’r, 806 F.2d 1451, 1453 (9th

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Cir. 1986). We affirm.

The Tax Court properly dismissed Zentmyer’s petition for failure to state a claim because Zentmyer did not set forth a clear and concise assignment of error or any facts demonstrating error in the Commissioner’s determinations. See Tax Ct. R. 34(b)(4); Grimes, 806. F.2d at 1453 (income tax is constitutional; taxable income includes “gain derived from capital, from labor, or from both combined” (citation and internal quotation marks omitted)).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

2 18-72116