Robert C. Gunther v. Commissioner of Internal Revenue

Opinion

Case: 19-11790 Date Filed: 01/07/2020 Page: 1 of 2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11790 Non-Argument Calendar ________________________

Agency No. 002834-16

ROBERT C. GUNTHER, JAYNE C. GUNTHER,

Petitioners-Appellants,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee. ________________________

Petition for Review of a Decision of the U.S. Tax Court ________________________

(January 7, 2020)

Before WILLIAM PRYOR, NEWSOM and BRANCH, Circuit Judges.

PER CURIAM: Case: 19-11790 Date Filed: 01/07/2020 Page: 2 of 2

Robert and Jayne Gunther appeal the denial of their motion to restrain the

collection of a penalty for gross valuation misstatement levied against them as

owners of a trust that was a partner in a partnership. 26 U.S.C. § 6662(h). The tax

court denied the Gunthers’ motion based on its lack of jurisdiction during their

partner-level deficiency proceeding to review a penalty assessed in a partnership-

level proceeding. We reached the same conclusion on the identical jurisdictional

issue in Highpoint Tower Technology Inc. v. Commissioner of Internal Revenue,

931 F.3d 1050, 1064–65 (11th Cir. 2019). The Gunthers concede that the “result in

[Highpoint] resolve[s] this case” because it involved same partnership and

“substantially similar” transactions as engaged in by their trust. And the

Commissioner of Internal Revenue requests summary affirmance based on

Highpoint. The Supreme Court recently denied the petition for a writ of certiorari

in Highpoint, so it is the law of the case and bars the Gunthers’ challenge to the

decision of the tax court. See United States v. Jordan, 429 F.3d 1032, 1035 (11th

Cir. 2005). Because that decision “is clearly right as a matter of law so that there

[is] no substantial question as to the outcome of the case,” Groendyke Transp., Inc.

v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), we grant the Commissioner’s

motion for summary affirmance.

AFFIRMED.