Patrick Combs v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2021
• Docket: 20-70262
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PATRICK COMBS, AKA Patrick Davy No. 20-70262 Combs, Tax Ct. No. 22748-14 Petitioner-Appellant,

v. MEMORANDUM*

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Patrick Combs appeals pro se from the Tax Court’s decision, following a

bench trial, upholding the determinations of deficiency, penalties, and an addition

by the Commissioner of Internal Revenue regarding his federal income taxes for

the 2010, 2011, and 2012 tax years. We have jurisdiction under 26 U.S.C.

* 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). § 7482(a)(1). We review de novo the Tax Court’s legal conclusions and for clear

error its factual findings. Meruelo v. Comm’r, 691 F.3d 1108, 1114 (9th Cir.

2012). We affirm.

The Tax Court properly granted summary judgment for the Commissioner

regarding Combs’s assessed tax liabilities for the 2010 and 2011 tax years because

the Commissioner introduced evidence of its deficiency determinations, and

Combs failed to raise a genuine dispute of material fact as to whether the

determinations were invalid. See Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir.

2002) (setting forth standard of review); 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"); see also

United States v. Basye, 410 U.S. 441, 447 (1973) (“[I]ncome is taxed to the party

who earns it and that liability cannot be avoid through an anticipatory assignment

of that income[.]”).

The Tax Court did not clearly err by finding that Combs received and failed

to report constructive dividends for the 2010 through 2012 tax years because this

finding was supported by ample evidence in the record. See Hardy v. Comm’r, 181

F.3d 1002, 1004-05 (9th Cir. 1999) (“If the Commissioner introduces some

evidence that the taxpayer received unreported income, the burden shifts to the

2 20-70262 taxpayer to show by a preponderance of the evidence that the deficiency was

arbitrary or erroneous.”); P.R. Farms, Inc. v. Comm’r, 820 F.2d 1084, 1086-87 (9th

Cir. 1987) (outlining the two-part test for determining the existence of a

constructive dividend and affirming the finding of a dividend where the record

supported the determination).

The Tax Court did not clearly err by finding that Combs was liable for

accuracy-related penalties for inaccurately reporting his income for the 2010

through 2012 tax years. See 26 U.S.C. § 6662(a), (b); Hansen v. Comm’r, 471

F.3d 1021, 1028-29 (9th Cir. 2006) (explaining that an accuracy-related penalty on

underpayment of tax may be assessed due to taxpayer’s negligence).

We do not consider whether the Tax Court erred in sustaining the addition

for failure to file a timely return for 2011 or imposing a penalty under § 6673 for

maintaining frivolous positions because Combs does not address these issues in his

opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(arguments raised for the first time in a reply brief are deemed waived).

We reject as meritless Combs’s contention that the Tax Court engaged in

fraud.

AFFIRMED.

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