Appellate Waiver in Tax CDP Appeals: Inadequate Appendix and Uncited, Undeveloped Arguments Forfeit Review

1. Introduction

Davison v. CIR (10th Cir. Mar. 17, 2025) arises from IRS collection efforts for tax years 2004 and 2005 after Allen R. Davison and Sharon L. Davison (the “Appellants”) failed to pay liabilities previously resolved by stipulated Tax Court decisions. The IRS filed liens and pursued levies; Appellants requested Collection Due Process (“CDP”) hearings and sought to reduce the already-stipulated liabilities using asserted net operating losses (“NOLs”) from other years and pass-through entities.

The Tax Court granted summary judgment for the Commissioner, sustaining the collection determinations. On appeal, the central issue became procedural rather than substantive: whether Appellants’ noncompliant appellate briefing and appendix preserved any issues for appellate review.

2. Summary of the Opinion

The Tenth Circuit affirmed the Tax Court. Although the Tax Court had resolved multiple disputes (including NOL substantiation, limits on challenging underlying liability in CDP, and issue preservation), the Court of Appeals affirmed principally because Appellants’ opening brief and appendix were so deficient that they waived appellate review. The court emphasized that it would not search the record, craft arguments, or consider undeveloped claims unsupported by record citations and legal authority.

The court also noted its discretion to review merits “insofar as the record permits,” but declined to exercise it under the circumstances.

3. Analysis

3.1. Precedents Cited

The opinion is an applied synthesis of two lines of authority: (i) Tenth Circuit waiver/forfeiture rules for inadequate appellate presentation, and (ii) tax-procedure limits governing CDP review and NOL substantiation (largely discussed as context for why Appellants needed to confront the Tax Court’s reasoning with record support).

A. Waiver and briefing adequacy (record citations, legal authority, developed arguments)

  • Birch v. Polaris Indus., Inc., 812 F.3d 1238 (10th Cir. 2015) and Fed. R. App. P. 28(a)(8)(A): cited for the requirement that contentions be supported by record citations; the Davison court used this to fault Appellants’ complete lack of record citations.
  • Phillips v. James, 422 F.3d 1075 (10th Cir. 2005): the court relied on this to reiterate it will not independently search the record to support a party’s arguments.
  • Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533 (10th Cir. 1996): used to support declining review when the brief fails to cite where issues were raised and ruled on below.
  • United States v. Banks, 451 F.3d 721 (10th Cir. 2006): invoked for the rule that arguments must be supported by legal authority.
  • Nixon v. City & Cnty. of Denver, 784 F.3d 1364 (10th Cir. 2015): central to the panel’s point that appellants must explain why the lower court’s reasoning was wrong—Appellants did not engage with the Tax Court’s stated rationales.
  • Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008) and Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998): the court drew on these to treat “perfunctory” and inadequately developed claims as waived.
  • Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999): cited for the principle that the court will not craft legal arguments for litigants.
  • Stump v. Gates, 211 F.3d 527 (10th Cir. 2000): used to reject any attempt to cure opening-brief deficiencies in a reply brief.
  • N.M. Farm & Livestock Bur. v. U.S. Dep't of Interior, 952 F.3d 1216 (10th Cir. 2020): acknowledged as the source of the court’s discretion to review merits despite briefing problems, which it declined to exercise here.
  • Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007): referenced for the rule that issues not raised in the opening brief are not considered on appeal (applied to Appellants’ non-briefed challenge to the Tax Court’s burden-of-proof ruling under 26 U.S.C. § 7491(a)).

B. CDP issue-preservation and limits on challenging underlying liability

  • Keller Tank Servs. II, Inc. v. Comm'r, 854 F.3d 1178 (10th Cir. 2017): cited to reinforce that CDP challenges to underlying tax liability are limited by 26 U.S.C. § 6330(c)(2)(B), especially where the taxpayer had a prior opportunity to dispute.
  • Amanda Iris Gluck Irrevocable Tr. v. Comm'r, 154 T.C. 259 (2020): used to illustrate an exception permitting an underlying-liability challenge in CDP based on NOL issues where there was no prior opportunity to dispute. The Davison proceedings turned on whether Appellants could substantiate any NOLs that could affect the stipulated years.
  • Giamelli v. Comm'r, 129 T.C. 107 (2007): relied upon for the proposition that issues not raised during the CDP hearing cannot be raised later in Tax Court review—supporting exclusion of, among other things, a “flock contract deduction” claim and a limitations defense not asserted in the CDP process.

C. NOL substantiation, evidentiary sufficiency, and burden

  • Benavides & Co., P.C. v. Comm'r, 118 T.C.M. (CCH) 221 (2019): cited by the Tax Court (and recited by the Tenth Circuit) for the point that tax returns “cannot be used to substantiate a claimed NOL” because they are merely statements of the taxpayer’s position.
  • Keith v. Comm'r, 115 T.C. 605 (2000): noted for the rule that where the burden does not shift under 26 U.S.C. § 7491(a), the taxpayer bears the burden to establish the existence and amount of an NOL carryover/carryback.

D. Statutory authority and “major questions” framing

  • West Virginia v. E.P.A., 597 U.S. 697 (2022): Appellants invoked it to argue the IRS exceeded statutory authority in denying NOL claims. The Tax Court rejected that framing (and the Tenth Circuit noted it), observing that Congress expressly authorized IRS collection authority in 26 U.S.C. §§ 6301-6344 and that Appeals reviewed and allowed NOL carrybacks to the extent substantiated.

3.2. Legal Reasoning

The Tenth Circuit’s reasoning is a disciplined application of appellate procedure:

  1. Record responsibility and appendix sufficiency: The court emphasized the appellant’s duty to provide an adequate record and appendix (10th Cir. R. 10.4(A), 30.1(B)(1)). Appellants submitted only the Tax Court decision and a post-judgment reconsideration motion not at issue, omitting key record materials necessary to evaluate claims about NOL substantiation, cooperation, CDP issue preservation, and limitations.
  2. No record citations, no review: The court treated the absence of record citations as independently fatal, citing the principle that it will not search the record (Phillips v. James) and that Fed. R. App. P. 28 requires pinpoint citations.
  3. No engagement with the Tax Court’s reasoning: Even if the record had been adequate, Appellants did not meaningfully address the Tax Court’s stated rationales (e.g., why tax returns and promissory notes were insufficient, why cooperation findings were undisputed, why the “Settlement Proposal” was conditional, why West Virginia v. E.P.A. was untimely and meritless, or why certain CDP issues were barred).
  4. Undeveloped “sound bites” are waived: The court characterized Appellants’ reliance on broad concepts (Taxpayer Bill of Rights, “ripple effect,” economic reality, duty of consistency) as vague and unsupported by authority or application to the summary judgment ruling.
  5. Attempted cure in reply is too late: The court noted the reply brief could not fix opening-brief defects (Stump v. Gates).
  6. Discretion not exercised: Although the court recognized it could examine merits where possible (N.M. Farm & Livestock Bur.), it declined given the magnitude and breadth of the briefing failures.

The result is a procedural affirmance: the court did not resolve disputed tax-substance questions because Appellants did not properly present them for appellate review.

3.3. Impact

  • Procedural discipline in tax appeals: The decision underscores that tax appellants—especially those represented by counsel (and here, the opinion notes “Mr. Davison is a pro se attorney”)—must comply with appellate rules regarding the appendix, record citations, and developed legal argumentation.
  • CDP practice reminder: While not the primary holding on appeal, the opinion reinforces that CDP review is constrained: underlying liability challenges are limited by 26 U.S.C. § 6330(c)(2)(B) and issues not raised in CDP proceedings may be barred (Giamelli v. Comm'r).
  • Substantiation expectations for NOLs: The narrative affirms (through the Tax Court’s reasoning recited on appeal) that NOL deductions require credible, documentary substantiation beyond a filed return and beyond unconsummated or unproven basis contributions (e.g., promissory notes without proof of payment).
  • Precedential weight: The disposition is an “ORDER AND JUDGMENT” expressly designated “not binding precedent” except for law-of-the-case, res judicata, and collateral estoppel. Its practical influence is therefore chiefly persuasive, but it consolidates familiar waiver doctrine in a tax-collection setting.

4. Complex Concepts Simplified

  • Collection Due Process (CDP) hearing: A taxpayer’s opportunity to challenge certain IRS collection actions (liens/levies) before (and then in court after) collection proceeds. CDP is not a general “do-over” of tax liability; it has statutory limits.
  • Underlying tax liability challenge in CDP: Under 26 U.S.C. § 6330(c)(2)(B), taxpayers can generally challenge the underlying liability in CDP only if they did not receive a notice of deficiency or otherwise have a prior opportunity to dispute the liability.
  • Net Operating Loss (NOL) carryback/carryforward: A business loss in one year may, if proven and allowed by statute, be applied to other tax years to reduce taxable income (either backward to prior years or forward to future years). The taxpayer must substantiate the loss and its amount.
  • Substantiation: The requirement to prove deductions with reliable evidence (books/records, calculations, transactional proof). A tax return by itself is generally not proof; it is a claim.
  • Summary judgment: A decision without trial when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
  • Waiver on appeal (through inadequate briefing): Appellate courts require appellants to (i) identify issues, (ii) cite where they were raised and decided, (iii) support them with record citations, and (iv) develop legal arguments with authority. Failure can lead to affirmance without reaching the merits.
  • “Major questions” argument (West Virginia v. E.P.A.): A doctrine used to test whether an agency has clear congressional authorization for actions of vast economic/political significance. Here, the Tax Court viewed IRS collection authority as clearly authorized in the Internal Revenue Code and treated the contention as procedurally and substantively unavailing.

5. Conclusion

Davison v. CIR stands chiefly for a procedural rule with real-world bite: in the Tenth Circuit, an appellant who supplies an inadequate appendix, omits record citations, fails to show issue preservation, and does not engage the lower court’s reasoning risks a finding of waiver of appellate review, leading to affirmance regardless of the underlying tax dispute.

As a secondary takeaway, the opinion’s recounting of the Tax Court proceedings highlights recurring CDP themes—limited avenues to contest underlying liabilities, strict issue-preservation requirements, and the taxpayer’s burden to substantiate NOLs with credible evidence.