Patrick Combs v. Cir ( 2021 )

NOT FOR PUBLICATION FILED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
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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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