Safakish v. Commissioner , 689 F. App'x 568 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMIR SAFAKISH, No. 15-70826
Petitioner-Appellant, Tax Ct. No. 8032-10
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Amir Safakish appeals pro se from the Tax Court’s decision following a
bench trial upholding the Commissioner of the Internal Revenue’s determination of
income tax deficiencies and penalties for tax years 2006 and 2007, and additions
for 2007. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo
*
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).
the Tax Court’s legal conclusions and for clear error its findings of fact. Johanson
v. Comm’r, 541 F.3d 973, 976 (9th Cir. 2008). We affirm.
The Tax Court properly determined the deficiencies for tax years 2006 and
2007 because Safakish did not meet his burden to show his entitlement to business
expense deductions. See Delaney v. Comm’r, 743 F.2d 670, 671 (9th Cir. 1984)
(Commissioner’s deficiency determination is presumptively correct and it is
incumbent on taxpayer to rebut the presumption by a preponderance of the
evidence); Cracchiola v. Comm’r, 643 F.3d 1383, 1385 (9th Cir. 1981) (taxpayer
must maintain records from which his tax liability can be determined); Geiger v.
Comm’r, 440 F.2d 688, 689 (9th Cir. 1971) (burden is on the taxpayer to prove he
is entitled to business expense deductions); see also 26 U.S.C. § 6001.
The Tax Court properly found that Safakish failed to demonstrate reasonable
cause for the late filing of his 2007 tax return. See 26 U.S.C. § 6651(a)(1)
(providing for penalties for failure to file a timely tax return); United States v.
Boyle, 469 U.S. 241, 245 (1985) (“To escape the penalty, the taxpayer bears the
heavy burden of proving both (1) that the failure did not result from ‘willful
neglect,’ and (2) that the failure was ‘due to reasonable cause.’” (citation omitted)).
The Tax Court properly found that Safakish was liable for accuracy-related
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penalties for the tax years 2006 and 2007 for underpayment caused by Safakish’s
negligence. See 26 U.S.C. § 6662(a), (b); Hansen v. Comm’r, 741 F.3d 1021,
1028-29 (9th Cir. 2006) (accuracy-related penalty on underpayment of tax may be
assessed due to taxpayer’s negligence).
We do not consider documents submitted by Safakish with his opening and
reply briefs that were not filed or admitted into evidence by the Tax Court. See
Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (papers not
filed or admitted into evidence below are not part of the record on appeal); see also
Fed. R. App. P. 10.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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