Dann Duncan v. Cir ( 2020 )

NOT FOR PUBLICATION FILED
SEP 16 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANN LEE DUNCAN; KATHRINE GAY No. 19-72249
DUNCAN,
Tax Ct. No. 26727-13
Petitioners-Appellants,
v. MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Dann Lee Duncan and Kathrine Gay Duncan appeal pro se from the Tax
Court’s order denying their petition challenging a deficiency in their 2008 joint
income tax. 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
*
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).
determinations. Hongsermeier v. Comm’r, 621 F.3d 890, 899 (9th Cir. 2010). We
affirm.
The Tax Court properly determined that the notice of deficiency for tax year
2008 was timely. See 26 U.S.C. § 6501(a) (providing that a deficiency must
generally be assessed within three years from the date the taxpayer files his or her
federal income tax return); 26 U.S.C. § 6501(c)(4) (stating that a taxpayer may
consent in writing to the extension of the three-year period for the assessment of
tax).
The Tax Court properly upheld the Commissioner’s determination of
deficiency because the amount paid to Mr. Duncan for his legal services was not
excludable from his gross income as a gift. See 26 U.S.C. § 61 (broadly defining
gross income); Comm’r v. Dunkin, 500 F.3d 1065, 1069 (9th Cir. 2007)
(“[E]xclusions from gross income are construed narrowly in favor of taxation.”);
see also Comm’r v. Duberstein, 363 U.S. 278, 286 (1960) (“A gift in the statutory
sense . . . proceeds from a detached and disinterested generosity . . . out of
affection, respect, admiration, charity or like impulses.” (citations and internal
quotation marks omitted)).
The Tax Court did not clearly err in finding that taxpayers were not entitled
to the alleged deductions because they failed to meet their burden of clearly
showing a right to the deductions. See Sparkman v. Comm’r, 509 F.3d 1149, 1159
2 19-72249
(9th Cir. 2007) (explaining that the taxpayer bears the burden of clearly showing
the right to the claimed deduction).
We reject as meritless taxpayers’ contention that the IRS violated their due
process rights.
The Commissioner’s request to dismiss Mrs. Duncan from this appeal is
denied.
AFFIRMED.
3 19-72249