Douglas Cutting v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 2021
• Docket: 21-70235
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DOUGLAS H. CUTTING, No. 21-70235

Petitioner-Appellant, Tax Ct. No. 15370-17

v. MEMORANDUM* COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Submitted December 14, 2021**

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.

Douglas H. Cutting appeals from the Tax Court’s decision upholding the

Commissioner of Internal Revenue’s determination of deficiencies. We have

jurisdiction under 26 U.S.C § 7482(a)(1). We review de novo the Tax Court’s

legal conclusions and for clear error its factual determinations. Hardy v. Comm’r,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 181 F.3d 1002, 1004 (9th Cir. 1999). We affirm.

The Tax Court properly determined that Cutting did not meet his burden of

proving that he was entitled to a foreign earned income exclusion. See 26 U.S.C

§ 911(d)(1) (definition of “qualified individual”); id. § 911(d)(3) (definition of “tax

home”); Palmer v. IRS, 116 F.3d 1309, 1312 (9th Cir. 1997) (explaining that the

IRS’s deficiency determinations are entitled to the presumption of correctness

unless the taxpayer submits competent evidence that the assessments were

“arbitrary, excessive or without foundation”); cf. Folkman v. United States, 615

F.2d 493, 496 (9th Cir. 1980) (holding the tax home for airline pilots having dual

employers and places of employment was the city of the airline’s duty base).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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