Douglas Cutting v. Cir ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS H. CUTTING, No. 21-70235
Petitioner-Appellant, Tax Ct. No. 15370-17
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Douglas H. Cutting appeals from the Tax Court’s decision upholding the
Commissioner of Internal Revenue’s determination of deficiencies. We have
jurisdiction under 26 U.S.C § 7482(a)(1). We review de novo the Tax Court’s
legal conclusions and for clear error its factual determinations. Hardy v. Comm’r,
*
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).
181 F.3d 1002, 1004 (9th Cir. 1999). We affirm.
The Tax Court properly determined that Cutting did not meet his burden of
proving that he was entitled to a foreign earned income exclusion. See 26 U.S.C
§ 911(d)(1) (definition of “qualified individual”); id. § 911(d)(3) (definition of “tax
home”); 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”); cf. Folkman v. United States, 615
F.2d 493, 496 (9th Cir. 1980) (holding the tax home for airline pilots having dual
employers and places of employment was the city of the airline’s duty base).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 21-70235