Nitschke

MEMORANDUM **

Martin Nitschke appeals pro se the district court’s summary judgment for the United States in Nitschke’s action seeking to set aside the results of an IRS Collection Due Process (CDP) hearing which was held before an IRS Appeals Officer regarding a $500 frivolous return penalty imposed on Nitschke for filing a frivolous tax return in 1999. Nitschke contends that although he appeared telephonically at the CDP hearing, he did not receive the notice of assessment of the frivolous return penalty and thus any assessment against him is invalid. He further contends that the district court erred by considering on summary judgment evidence from the IRS which was not presented at the CDP hearing.

This court previously affirmed the Tax Court’s ruling that Nitschke filed a frivolous tax return in 1999. Nitschke v. Commissioner, 76 Fed. Appx. 137 (9th Cir. 2003). Here, the district court correctly determined that no genuine issues of material fact existed regarding the frivolous nature of Nitschke’s challenge to the penalty. 26 U.S.C. § 61 (a); Olson v. United States, 760 F.2d 1003 (9th Cir.1985); Wilcox v. Commissioner of Internal Revenue, 848 F.2d 1007, 1008 (9th Cir.1988).…