Unpublished Dispositionjames D. Fisher, Petitioner-appellant, v. Commissioner of Internal Revenue, Respondent-appellee, 787 F.2d 589 (6th Cir. 1986)

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Apellate Procedure.

In this action, petitioner seeks review of a Tax Court decision affirming tax deficiency determinations and penalties imposed thereon. The parties have submitted briefs, petitioner acting without benefit of counsel.

Upon consideration, we affirm. Our review reveals that the deficiency judgment imposed for the years 1976 and 1977 was the result of a summary judgment. Petitioner chose not to offer any legal theory in opposition to the motion at trial, this despite having been fully advised by the hearing officer of the desirability of so doing. It is axiomatic that an appellate court will not ordinarily give consideration to issues not raised below. See, e.g., Bannert v. American Can Co., 525 F.2d 104 (6th Cir. 1975), cert. denied, 426 U.S. 942 (1976). Petitioner's appellate brief does not persuade us to depart from this rule. We also find, in the transcript of the Tax Court hearing, ample evidence to support the finding that civil fraud and other penalties be imposed on petitioner. See Solomon v. Commissioner of Internal Revenue, 732 F.2d 1459, 1461 (6th Cir. 1984).

It appearing therefore that the question on which decision of the cause depends is so unsubstantial as not to need further argument, Rule 9(d) (3), Rules of the Sixth Circuit,

It is ORDERED that the final order of the Tax Court be and it is hereby affirmed.