
    Robert B. WISTER, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 07-71760.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 8, 2008.
    
    Filed Sept. 26, 2008.
    Robert B. Wister, Hayward, CA, pro se.
    Robert R. Di Trolio, Clerk, U.S. Tax Court, Sara Ann Ketchum, Teresa E. McLaughlin, Eileen J. O’Connor, U.S. Department of Justice, Donald L. Korb, Acting Chief Counsel, Washington, DC, for Respondent.
    Before: TASHIMA, SILVERMAN, and CALLAHAN, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Robert B. Wister appeals pro se from the tax court’s order dismissing for lack of subject matter jurisdiction his petition challenging the penalty assessment imposed for filing a frivolous tax return. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo, Gorospe v. Comm’r, 451 F.3d 966, 968 (9th Cir. 2006), and we vacate and remand.

The tax court concluded that it did not have jurisdiction to redetermine the frivolous return penalty assessed under 26 U.S.C. § 6702 and review the Commissioner’s determination to collect the penalty by levy. In light of the subsequent decision in Callahan v. Comm’r, 130 T.C. 3, (2008), we vacate the judgment and remand this matter to the tax court for further consideration.

Each party shall bear its own costs on appeal.

VACATED and REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     