D.C. Circuit Holds It Is Proper Venue for CDP Appeal, Affirms Tax Court

Carlton M. Smith and Frank Agostino were on the brief for amici curiae Peter Kuretski, et al. in support of appellant.

Teresa E. McLaughlin, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief was Marion E.M. Erickson, Attorney, U.S. Department of Justice.

Before: TATEL and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge: Appellant Ronald Byers seeks review of orders and decisions issued by the United States Tax Court affirming a decision by the Internal Revenue Service ("IRS"). The disputed IRS decision imposed a levy on Appellant's property to collect overdue income taxes for the tax years 1999-2002.

Appellant does not seek review of the amount of the taxes he owes. Rather, he raises a number of procedural and substantive challenges emanating from an IRS Office of Appeals Collection Due Process ("CDP") hearing which resulted in the contested levy. The IRS has moved for a change of venue, arguing that this appeal should be transferred to the United States Court of Appeals for the Eighth Circuit, where venue properly lies. Appellant responds that venue is proper here under 26 U.S.C. § 7482(b)(1) because he is not seeking a redetermination of the amount of his taxes. In support of his claim, Appellant points the court to an illuminating article, James Bamberg, A Different Point of Venue: The Plainer Meaning of Section 7482(b)(1), 61 TAX LAW. 445 (2008), in which the author contends that

On the merits, Appellant principally argues that the Tax Court should be reversed because: (1) the CDP Settlement Officer engaged in improper ex parte communications and thus conducted Appellant's CDP hearing arbitrarily and unfairly; (2) Senior Judge Stephen J. Swift of the Tax Court erred in denying Appellant's request that he recuse himself from ruling on Appellant's Appointments Clause challenge to the ability of the Chief Judge to recall Senior Judges to decide cases before the Tax Court; (3) the Tax Court erred in dismissing as moot the collection of Appellant's 2003 tax liability after the IRS abated the assessment for that year and indicated that it was no longer pursuing a levy based on the 2003 assessment; and (4) the Tax Court erred in upholding the levy determination after the 2003 tax assessment was no longer under consideration. Appellant also raises a number of other issues which do not warrant recitation here. After carefully reviewing all of Appellant's claims, we find no merit in any of his challenges to the contested orders and decisions of the Tax Court. We therefore affirm the judgment of the Tax Court.

A taxpayer who disagrees with the statement of the amount of taxes owed in a notice of deficiency has two options: pay the amount assessed and then sue for a refund in federal district court or the Court of Federal Claims under 28 U.S.C. § 1346(a), or refuse to pay the tax and file a petition in Tax Court under 26 U.S.C. § 6213 for a "redetermination of the deficiency." Either of the two court proceedings may result in a redetermination of the amount of taxes owed by the taxpayer.

In a CDP hearing challenging a levy, a taxpayer may raise "any relevant issue relating to the unpaid tax or the proposed levy," including "challenges to the appropriateness of collection actions," and "offers of collection alternatives." Id. § 6330(c)(2)(A). The appeals officer then considers whether any proposed collection action "balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary." Id. § 6330(c)(3)(C). The law also affords a taxpayer the right to appeal a CDP determination to the Tax Court. Id. § 6330(d)(1).

CDP proceedings are informal and may be conducted via correspondence, over the phone, or face to face. See 26 C.F.R. §§ 601.106(c), 301.6330-1(d). A taxpayer may challenge his underlying tax liability at a CDP hearing, but only if he "did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." 26 U.S.C. § 6330(c)(2)(B).

Congress originally placed venue for all appeals from decisions issued by the U.S. Board of Tax Appeals -- later renamed the U.S. Tax Court -- in the regional circuits, unless the individual did not file a return. 26 U.S.C. § 1141(b)(1) (1940) (providing that "decisions may be reviewed by the Circuit Court of Appeals for the circuit in which is located the collector's office to which was made the return of the tax in respect of which the liability arises or, if no return was made, then by the United States Court of Appeals for the District of Columbia").

In 1966, Congress changed the venue provision, adding two subsections that prescribed the proper venue for appeals from Tax Court decisions concerning redetermination requests sought by individuals and by corporations. Pub. L. No. 89-713, § 3(c), 80 Stat. 1107, 1108-09 (1966) (codified at 26 U.S.C. § 7482(b)(1)(A)-(B) (1970)). For both corporations and individuals, the statute stated that the proper venue for appeals involving redeterminations of liability was the federal court of appeals for the circuit in which the taxpayer's residence was located. Id. However, for the appeal of any case not enumerated in subsection (A) and (B), it assigned venue to the D.C. Circuit. Id. In other words, in 1966, Congress deliberately made the D.C. Circuit the default venue for tax cases.

Between 1966 and 1997, as Congress continued to expand the jurisdiction of the Tax Court, it also amended § 7482(b)(1) to add four more subsections, § 7482(b)(1)(C)-(F), that established venue based on a taxpayer's residency. See Revenue Act of 1978, Pub. L. No. 95-600, § 336(c), 92 Stat. 2763, 2842; Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, § 1041(b), 88 Stat. 829, 950-51; Tax Reform Act of 1976, Pub. L. No. 94-455, §§ 1042(d), 1306(b), 90 Stat. 1520, 1638-39, 1719; Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, § 402, 96 Stat. 324, 668; Taxpayer Relief Act of 1997, Pub. L. No. 105-34, § 1239, 111 Stat. 788, 1028. After these various revisions, the D.C. Circuit remained the default venue if "for any reason no subparagraph [assigning venue to a regional circuit] applies." 26 U.S.C. § 7482(b)(1). Unlike its approach when expanding Tax Court jurisdiction to other areas, Congress did not alter the venue provision when it created the CDP framework in 1998.

The applicable provisions of the statute now read as follows:

There is no question here regarding the Tax Court's exclusive jurisdiction over petitions for income tax redeterminations and appeals from CDP determinations. Id. §§ 6330(d), 6213(a), 7421. What is at issue in this case is the proper venue for appeals challenging Tax Court decisions concerning these CDP determinations.

B. Proceedings Below

Appellant is a self-employed taxpayer. In the tax years 1999 through 2002, Appellant failed to file federal tax returns. The IRS, pursuant to 26 U.S.C. § 6020(b), prepared substitute tax forms for Appellant and mailed him notices of deficiency for each year. Byers v. Comm'r, 103 T.C.M. (CCH) 1168 (2012). Appellant unsuccessfully challenged the amounts listed in the deficiency determinations, which were upheld in 2007 by the Tax Court. Byers v. Comm'r, 94 T.C.M. (CCH) 438 (2007). Because he resided in Minnesota, Appellant sought review of the Tax Court's decision in the Eighth Circuit. See 26 U.S.C. § 7482(b)(1)(A). That court upheld the Tax Court's deficiency determinations, Byers v. Comm'r, 351 F. App'x 161 (8th Cir. 2009), and the Supreme Court denied Appellant's petition for certiorari, Byers v. Comm'r, 131 S. Ct. 79 (2010).

The Commissioner also asserted that Appellant owed taxes for 2003. Appellant brought a separate challenge to this determination in Tax Court. In 2010, the Tax Court concluded that it lacked jurisdiction over taxable year 2003 because no notice of deficiency was produced and because there "was no indication or evidence that one was mailed" to Appellant. Mot. to Dismiss on Ground of Mootness at 3-4, reprinted in Appendix ("App.") 6-7. The Commissioner did not appeal and instead abated the 2003 assessment. Id.

In January 2009, prior to the Tax Court's ruling as to 2003, the IRS collections department determined that Appellant was subject to tax collection by levy for liabilities (including penalties and interest) totaling $175,506.25 for the years 1999, 2000, 2001, 2002, and 2003. Final Notice of Intent to Levy, reprinted in App. 60-61. Appellant first challenged the levy determination with the IRS Office of Appeals via a CDP hearing. His challenge was denied. Notice of Determination Concerning Collection Action(s) under Section 6320 and/or 6330, reprinted in App. 52-58.

Appellant appealed to the Tax Court. After the Commissioner abated the 2003 assessment, the Commissioner moved to dismiss as moot Appellant's CDP petition with respect to taxable year 2003. Mot. to Dismiss on Ground of Mootness, reprinted in App. 4-8. The Tax Court granted this motion, leaving taxable years 1999-2002 in dispute. Order, reprinted in App. 9. The Tax Court then granted summary judgment in favor of the Commissioner. Byers, 103 T.C.M. (CCH) at 1170.

Appellant now seeks review in this court to overturn the orders and decisions issued by the Tax Court denying his appeal of the determination made by the IRS Office of Appeals in his CDP hearing. Appellant does not seek a redetermination of the underlying tax liabilities in this court. He merely challenges the Tax Court's decisions and orders relating to his CDP hearing. The IRS has moved to transfer venue, arguing that 26 U.S.C. § 7482 lays venue in the Eighth Circuit, where Appellant resides.

The parties' dispute over the proper interpretation of the venue provisions in 26 U.S.C. § 7482(b) "clearly raises a question of law. Therefore we address it de novo." SEC v. Johnson, 650 F.3d 710, 714 (D.C. Cir. 2011) (citations omitted).

We review decisions of the Tax Court "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury." 26 U.S.C. § 7482(a)(1). Thus, we apply de novo review to the Tax Court's determinations of law. Andantech L.L.C. v. Comm'r, 331 F.3d 972, 976 (D.C. Cir. 2003).

We also apply de novo review to decisions to grant summary judgment, applying the same standards as the district courts. See generally EDWARDS, ELLIOTT & LEVY, FEDERAL STANDARDS OF REVIEW 44-50 (2d ed. 2013). "Those standards are largely derived from Federal Rule of Civil Procedure 56 and the Supreme Court's seminal decisions in [ Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)], and [ Celotex Corp. v. Catrett, 477 U.S. 317 (1986).]" Id. at 44. As required by Rule 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In applying this rule, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Liberty Lobby, 477 U.S. at 247-48.

In a CDP case in which the merits of the underlying tax liability are not at issue, this court reviews the determinations made by the Office of Appeals for an abuse of discretion. See, e.g., Tucker v. Comm'r, 676 F.3d 1129, 1135-37 (D.C. Cir. 2012).

B. Venue

The Internal Revenue Manual clearly states that "none of subparagraphs (A)-(F) [in 26 U.S.C. § 7482(b)(1)] expressly mentions a decision in a CDP case." IRM 36.2.5.8(1). We agree with this characterization of the statute, which makes the Commissioner's motion to transfer all the more puzzling. The statute's plain language says that, "[i]f for any reason no subparagraph of the preceding sentence applies, then [Tax Court] decisions may be reviewed by the Court of Appeals for the District of Columbia." 26 U.S.C. § 7482(b)(1). Because none of the subparagraphs expressly mentions a decision in a CDP case, this catch-all provision applies, and venue lies in this court. As such, venue cannot be proper in the Eighth Circuit unless the parties so stipulate in writing. Id. § 7482(b)(2). Appellant timely filed his appeal in this court and he has not acceded to the IRS's request to transfer the case. Therefore, venue in this court is proper.

The IRS offers several arguments in support of its claim that venue is proper only in the Eighth Circuit. As we explain below, we find no merit in these arguments.

First, the IRS urges that since CDP hearings can in some circumstances include "challenges" to the underlying tax liability, they can appropriately be considered "redeterminations." Br. for the Appellee at 26. Relatedly, the IRS asserts that if venue turns on whether a redetermination of a tax liability is "properly at issue," venue determinations will invariably depend on the merits of each case. Id. at 27. Both points miss the mark. It is true that the statutory venue provision places appeals in the circuit of a taxpayer's residence whenever the taxpayer is "seeking redetermination of tax liability." 26 U.S.C. § 7482(b)(1)(A). However, it is clear in this case that Appellant is not seeking a redetermination of his tax liability.

It may be the case, as the IRS argues, that some appeals will involve challenges to Tax Court decisions concerning both redeterminations and collection actions. In such cases, venue may not be proper in the D.C. Circuit. But this possibility does not justify shoehorning all CDP cases into the redetermination venue provision. Just as we see in this case, it normally will be obvious from the taxpayer's statement of the issues whether an appeal involves a challenge to a redetermination decision, a CDP decision on a collection method, or both. Therefore, it will not be difficult for this court to distinguish between the two types of cases to determine whether venue is proper in the D.C. Circuit.

Second, the IRS argues that "[i]t would not be reasonable to suppose that in adopting the CDP provisions for the benefit of taxpayers, Congress intended to inconvenience them by requiring them to bring all appeals to this Court, absent stipulation by the Commissioner under § 7482(b)(2), no matter where they live." Br. for the Appellee at 29. The IRS's suppositions regarding congressional intent carry hardly any weight when the statutory provision at issue is absolutely clear. Moreover, our holding is limited to appeals challenging only a lien or levy determination; it does not reach an appeal contesting both collection action and redetermination decisions, which presumably would fall under subsection (b)(1)(A) with venue lying in a regional court of appeals. See 26 U.S.C. § 7482(b)(1) (assigning regional venue "in the case of a petitioner seeking redetermination of tax liability" (emphasis added)).

Third, the IRS asserts that if Congress meant to limit venue to the D.C. Circuit, it would have done so explicitly. Br. for the Appellee at 30-31. This is a curious argument because the plain terms of the statute settle the issue. See Bamberg, supra, at 456-57. It is true that the regional circuits have taken venue over CDP appeals in the past, and this court has granted motions to transfer venue to other circuits. See Robinson v. Comm'r, No. 13-1081 (D.C. Cir. July 5, 2013); Brown v. Comm'r, No. 02-1012, 2002 WL 1364313 (D.C. Cir. May 13, 2002); Br. for the Appellee at 18; Br. for the Appellant at 51-52. However, the IRS has not identified -- nor have we found -- a decision where the venue issue addressed here was properly raised and fully addressed by a court of appeals.

Finally, the IRS argues that it is simply impractical for the D.C. Circuit to hear all non-redetermination CDP cases. Br. for the Appellee at 31-32. Our research, however, indicates that the number of published decisions from the courts of appeals involving appeals from Tax Court CDP decisions is far from overwhelming. Furthermore, it is not unreasonable to assume that, even after the issuance of our decision in this case, many taxpayers who seek review of CDP decisions will agree with the IRS to have their cases heard in a circuit other than the D.C. Circuit. In any event, Congress determines the jurisdiction and venue of this court and we have no authority to declare otherwise. Cf. Cohens v. Virginia, 19 U.S. 264, 404 (1821) ("We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given."); Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs, 558 U.S. 67, 71 (2009) (holding that "there is surely a starting presumption that when jurisdiction is conferred, a court may not decline to exercise it").

Most of the arguments raised by the IRS rest on the Commissioner's view that it would be illogical, inconvenient, and bad policy to apply § 7482(b)(1) as it is written and to hold that the D.C. Circuit is the appropriate venue for appeals from Tax Court CDP decisions. For example, the IRS argues that

The IRS's arguments "rest[ ] on reasoning divorced from the statutory text," which surely cannot carry the day. Massachusetts v. EPA, 549 U.S. 497, 532 (2007). It is well established that "when the statute's language is plain, the sole function of the courts -- at least where the disposition required by the text is not absurd -- is to enforce it according to its terms." Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000) (internal quotation marks omitted). Indeed, § 7482(b)(1) may be "awkward, . . . but that does not make it ambiguous on the point at issue." Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). And the fact that the IRS has regularly moved to transfer venue to the regional circuits pursuant to Internal Revenue Manual, Part 36.2.5.8 is irrelevant. "[N]either . . . the [IRS] manual nor allegedly longstanding agency practice can trump . . . the force of law." Cent. Laborers' Pension Fund v. Heinz, 541 U.S. 739, 748 (2004).

Excluding a few exceptions that are not relevant here, the plain text of § 7482(b)(1) says that the proper venue to seek review of a Tax Court decision lies in the D.C. Circuit unless one of the circumstances enumerated in subparagraphs (A)-(F) applies. If the IRS believes that compliance with the statute as written will result in "undesirable consequences," then it must "take its concerns to Congress." Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 142 (D.C. Cir. 2006). Because none of the circumstances enumerated in subparagraphs (A)-(F) are at issue in this case and the parties have not stipulated to venue in another circuit, we deny the IRS's motion to transfer this case to the Eighth Circuit.

We have no occasion to decide in this case whether a taxpayer who is seeking review of a CDP decision on a collection method may file in a court of appeals other than the D.C. Circuit if the parties have not stipulated to venue in another circuit.

C. Appellant's Claims on the Merits

As the IRS explains:

There is not one iota of evidence in the record to indicate that the Settlement Officer impermissibly communicated with other IRS employees or interested parties. The Settlement Officer exchanged emails with someone in the IRS general counsel's office in an effort to obtain copies of the notices of deficiency that she needed to conduct her review of Appellant's case. The ban on ex parte communications is aimed at communications between offices that might actually bias the appeals officer against the taxpayer, not at communications that might help her obtain documents that she is required to obtain. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 1001(a)(4), 112 Stat. 685, 689 (banning "ex parte communications between appeals officers and other Internal Revenue Service employees to the extent that such communications appear to compromise the independence of the appeals officers"). Nothing in the record indicates that the independence of the Settlement Officer was in any way compromised during the CDP hearing.

Appellant's motion asserted that the Tax Court could not act through Senior Judge Swift because 26 U.S.C. § 7447(c), which allows for the recall of retired Tax Court judges to act as Senior Judges, violates the Appointments Clause. Appellant concedes, however, that he did not raise the Appointments Clause issue until after Judge Swift had issued his judgment on behalf of the Tax Court. See Reply Br. for the Appellant at 37.

Appellant's claim is untimely. As the IRS notes: "This is a purely legal argument that taxpayer could have raised earlier in the proceeding, but chose not to. For that reason alone, the Tax Court did not abuse its discretion in denying the motion to vacate." Br. for the Appellee at 56 (citing Cerand & Co., Inc. v. Comm'r, 254 F.3d 258, 260 (D.C. Cir. 2001)). We agree. Because Appellant did not timely raise his Appointments Clause argument with the Tax Court, we "shall not pass upon [Appellant's] argument." Cerand & Co., 254 F.3d at 260.

Furthermore, we have no reason to be concerned that the actions of Senior Judge Swift were ultra vires. Under 26 U.S.C. § 7447(c), Senior Judges are empowered "to perform such judicial duties" as are requested by the Chief Judge. It is undisputed that Senior Judge Swift was properly recalled to duty by the Chief Judge of the Tax Court. The statute further provides that "[a]ny act, or failure to act, by an individual performing judicial duties pursuant to this subsection shall have the same force and effect" as an act taken by an active judge on the Tax Court. Id. These statutory authorizations are plainly constitutional. See Shoemaker v. United States, 147 U.S. 282, 301 (1893) ("It cannot be doubted, and it has frequently been the case, that congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.").

Appellant argues that the Tax Court "erred by mooting and striking 2003 from the case" because the year 2003 assessment "remained relevant to resolving the case's outcome." Br. for the Appellant at 72. Appellant is mistaken. With no levy being placed upon his property for the 2003 year, there was no actual case in controversy regarding an appeal of such a levy action. There was no appropriate course of action for the Tax Court to take but to dismiss as moot the dispute as to the year 2003 tax assessment.

In support of this claim, Appellant cites SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943), for the proposition that the Tax Court should not have based its decision on factors other than those considered by the Settlement Officer in the first instance. Under the Chenery doctrine, a reviewing court must confine itself to the grounds upon which the record discloses that the agency's action was based. Id. at 87-88. "If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis." SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). Appellant's argument fails for two reasons: First, the claim is based on the false premise that the Tax Court reviewed a record that was different from the record considered by the Settlement Officer. Second, the claim is not properly before this court because it was never raised with the Tax Court in the first instance. Our de novo review of the record confirms that the Tax Court did not err in granting summary judgment for the IRS.

After the Tax Court dismissed the year 2003 claim as moot, the IRS filed a motion for summary judgment asserting that the underlying tax liabilities for the years 1999-2002 were not at issue and that the IRS Appeals Office had not abused its discretion in determining that Appellant was subject to levy. Resp't's Mot. for Summ. J. at 9-13, Byers v. Comm'r, No. 3032-10L (T.C. May 19, 2011). The IRS further asserted that Appellant had failed to offer any viable collection alternatives; that Appellant had failed to submit any information necessary to allow a collection alternative to be considered by the Settlement Officer; and that, pursuant to the requirements of 26 U.S.C. § 6330, all of the legal and administrative prerequisites to levy had been met. Id. at 13-15. The IRS's motion for summary judgment also included a declaration from the Settlement Officer stating that "[t]he reasons for, and the facts underlying [her] determination are found in the Notice of Determination, dated November 24, 2009" and that those reasons were applicable "with respect to petitioner's unpaid income tax liabilities for tax years 1999, 2000, 2001, and 2002." Am. Decl. of Lupe Silva at 1, Byers v. Comm'r, No. 3032-10L (T.C. May 25, 2011). In other words, the final Amended Declaration of the Settlement Officer did not rely on the 2003 tax year.

Appellant's response to the motion for summary judgment, Pet'r's Notice of Objection, Byers v. Comm'r, No. 3032-10L (T.C. Dec. 27, 2011), did not raise any genuine disputes with respect to any of the material facts asserted by the IRS. And, importantly, Appellant's opposition to the motion for summary judgment did not challenge the admissibility of the Amended Declaration of the Settlement Officer, nor did it claim that the record before the Tax Court was different from the one that was relied upon by the Settlement Officer with respect to taxable year 2003.

The Tax Court granted the motion for summary judgment, holding that the IRS had not abused its discretion in allowing the levy against Appellant to proceed. Byers, 103 T.C.M. (CCH) at 1170. We agree with the Tax Court that summary judgment in favor of the IRS is clearly supported by the record.

As noted above, following the Tax Court's issuance of a summary judgment in favor of the IRS, Appellant filed a motion to vacate the Tax Court's orders and decision. In his motion to vacate, Appellant did not assert the Chenery argument that he has raised with this court. Mot. to Vacate Orders and Decision, Byers v. Comm'r, No. 3032-10L (T.C. Mar. 13, 2012). The first time that Appellant raised this argument as to taxable year 2003 was in his brief to this court. Appellant does not suggest that the record before the Tax Court was inadequate to support a levy. This is unsurprising because, even without considering the year 2003 tax assessment, Appellant admittedly owed more than $120,000 in back taxes and had expressed no intent to pay them.

It is unnecessary to tarry over Appellant's Chenery argument. We hold that, on the record at hand, we need not reach the Chenery question that has been raised by Appellant because it comes too late. "It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal." District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984); see also Breeden v. Novartis Pharm. Corp., 646 F.3d 43, 56 (D.C. Cir. 2011) (holding argument raised for first time on appeal forfeited); Benoit v. U.S. Dep't of Agric., 608 F.3d 17, 21 (D.C. Cir. 2010) (same). This principle controls here because Appellant never pursued his claim with the Tax Court in the first instance, although he had at least two opportunities to do so. We have discretion to consider untimely arguments if "exceptional circumstances" are present, Flynn v. Comm'r, 269 F.3d 1064, 1068-69 (D.C. Cir. 2001), but we find no such circumstances in this case.

In sum, we have no grounds to overturn the IRS's levy determination in this case.