Clayton v. Internal Revenue

• Court: Court of Appeals for the First Circuit
• Decided: June 10, 1998
• Docket: 97-2380
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 97-2380

FREDERIC S. CLAYTON and MARLENE B. CLAYTON,

Petitioners, Appellants,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent, Appellee.

ON APPEAL FROM THE DECISION OF THE UNITED STATES TAX COURT

Before

Selya, Circuit Judge,

Rosenn* and Campbell, Senior Circuit Judges.

Robert S. Grodberg with whom Zimble & Brettler was on brief for appellants. Laurie Snyder with whom Kenneth L. Greene, Attorneys, Tax Division, Department of Justice, and Loretta C. Argrett, Assistant Attorney General, were on brief for appellee.

June 10, 1998

*Of the Third Circuit, sitting by designation.

Per Curiam. The Commissioner assessed a deficiency in Appellants' return for taxable year 1985. Appellants sought review in the Tax Court, which rejected their challenge, and now appeal to this court. Having reviewed Appellants' briefs and heard argument, we affirm the decision of the Tax Court substantially for the reasons set out in its opinion. Clayton v. Commissioner, 74 T.C.M. (CCH) 146, T.C.M (RIA) 97,327 (1997). We specifically note that we are unable to find clear error in the Tax Court's determination that there was insufficient evidence to satisfy Appellants' burden of proof regarding the mailing of the fourth amended return. The Tax Court was not obliged to accept taxpayer Mr. Clayton's testimony as determinative that the fourth amended return was in fact mailed, given the evidence of non-delivery, his lack of specificity as to details, and the other factors noted in the Tax Court's decision and pointed out in the government's brief. While the issue was perhaps close, Appellants have not shown that the Tax Court's finding was clearly erroneous. See 26 U.S.C. 7482(a) (providing that Courts of Appeals review decisions of the Tax Court in the same manner as district court decisions in non-jury matters); McMurray v. Commissioner, 985 F.2d 36, 41 (1st Cir. 1993). In respect to the other issues Appellants raise, we are likewise satisfied that the Tax Court committed neither legal error nor clear factual error. Affirmed.