Emilio Express, Inc. v. Cir ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIO EXPRESS, INC., No. 19-70923
Petitioner-Appellant, Tax Ct. No. 14949-10
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
EMILIO TORRES LUQUE; GABRIELA No. 19-70928
MEDINA,
Tax Ct. No. 14962-10
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeals from a Decision of the
United States Tax Court
Submitted June 2, 2020**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
In these consolidated appeals, Emilio Torres Luque, Gabriela Medina, and
sole proprietorship Emilio Express, Inc., appeal pro se from the Tax Court’s orders
on cross-motions for summary judgment upholding the Commissioner of Internal
Revenue’s determinations of tax deficiencies for tax years 2003, 2004, and 2005
for Torres Luque and Medina, and tax year 2003 for Emilio Express, Inc. We have
jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo. Johnston v.
Comm’r, 461 F.3d 1162, 1164 (9th Cir. 2006). We affirm.
The Tax Court properly granted summary judgment for the Commissioner
because petitioners failed to raise a genuine dispute of material fact as to whether
the U.S.-Mexico Tax Treaty entitled them to relief from their United States tax
liability, even assuming Torres Luque and Medina’s Mexican residency under the
treaty. See Convention Between the Government of the United States of America
and the Government of the United Mexican States for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income,
Mex.-U.S., Sept. 18, 1992, S. Treaty Doc. No. 103-7 (establishing relief for
taxpayers potentially subject to double taxation and related issues); Higgins v.
Smith, 308 U.S. 473, 477 (1940) (“A taxpayer is free to adopt such organization for
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 19-70923
his affairs as he may choose and having elected to do some business as a
corporation, he must accept the tax disadvantages.” (footnote omitted)); cf.
UnionBanCal Corp. v. Comm’r, 305 F.3d 976, 986 (9th Cir. 2002) (noting the
similar U.S.-U.K. Tax Convention allows both sovereigns to tax residents of the
other presuming rules preventing double taxation are followed).
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.
3 19-70923