Jones Bell LLP v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2019
• Docket: 18-55934
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JONES, BELL, ABBOTT, FLEMING & No. 18-55934 FITZGERALD L.L.P., D.C. No. 2:17-cv-07752-PA-RAO Plaintiff-Appellant,

v. MEMORANDUM*

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Jones, Bell, Abbot, Fleming & Fitzgerald L.L.P. appeals from the district

court’s judgment dismissing its 28 U.S.C. § 1346(a)(1) action arising from the

Internal Revenue Service’s (“IRS”) assessment of a tax penalty for the late filing of

appellant’s 2015 partnership return. We have jurisdiction under 28 U.S.C. § 1291.

* 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). We review de novo a district court’s judgment under Federal Rule of Civil

Procedure 52(c). Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir. 1994). We

affirm.

The district court properly determined that appellant’s evidence was

insufficient to show that it timely mailed an application for a tax return filing

extension. See Lewis v. United States, 144 F.3d 1220, 1222-23 (9th Cir. 1998) (a

taxpayer must provide “credible evidence” of timely mailing of a document in

order to a raise a rebuttable presumption that the document was timely received by

the addressee). The district court therefore properly concluded that the IRS

properly assessed a penalty against appellant for not timely filing its 2015

partnership return.

AFFIRMED.

2 18-55934