Emilio Express, Inc. v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2020
• Docket: 19-70923
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EMILIO EXPRESS, INC., No. 19-70923

Petitioner-Appellant, Tax Ct. No. 14949-10

v. MEMORANDUM* COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

EMILIO TORRES LUQUE; GABRIELA No. 19-70928 MEDINA, Tax Ct. No. 14962-10 Petitioners-Appellants,

v.

COMMISSIONER OF INTERNAL REVENUE,

Appeals from a Decision of the United States Tax Court

Submitted June 2, 2020**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

In these consolidated appeals, Emilio Torres Luque, Gabriela Medina, and

sole proprietorship Emilio Express, Inc., appeal pro se from the Tax Court’s orders

on cross-motions for summary judgment upholding the Commissioner of Internal

Revenue’s determinations of tax deficiencies for tax years 2003, 2004, and 2005

for Torres Luque and Medina, and tax year 2003 for Emilio Express, Inc. We have

jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo. Johnston v.

Comm’r, 461 F.3d 1162, 1164 (9th Cir. 2006). We affirm.

The Tax Court properly granted summary judgment for the Commissioner

because petitioners failed to raise a genuine dispute of material fact as to whether

the U.S.-Mexico Tax Treaty entitled them to relief from their United States tax

liability, even assuming Torres Luque and Medina’s Mexican residency under the

treaty. See Convention Between the Government of the United States of America

and the Government of the United Mexican States for the Avoidance of Double

Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income,

Mex.-U.S., Sept. 18, 1992, S. Treaty Doc. No. 103-7 (establishing relief for

taxpayers potentially subject to double taxation and related issues); Higgins v.

Smith, 308 U.S. 473, 477 (1940) (“A taxpayer is free to adopt such organization for

** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 19-70923 his affairs as he may choose and having elected to do some business as a

corporation, he must accept the tax disadvantages.” (footnote omitted)); cf.

UnionBanCal Corp. v. Comm’r, 305 F.3d 976, 986 (9th Cir. 2002) (noting the

similar U.S.-U.K. Tax Convention allows both sovereigns to tax residents of the

other presuming rules preventing double taxation are followed).

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.

3 19-70923