MacGregor v. Commissioner

FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BONNIE LOU MacGREGOR, No. 11-70693
Petitioner - Appellant, Tax Ct. No. 12150-08
v.
COMMISSIONER OF INTERNAL MEMORANDUM*
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Bonnie Lou MacGregor appeals pro se from the Tax Court’s decision
upholding the determination of deficiencies by the Commissioner of the Internal
Revenue Service (“IRS”) with regard to MacGregor’s federal income taxes for tax
years 2001-2005. We have jurisdiction under 26 U.S.C. § 7482(a). We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo the Tax Court’s legal conclusions and for clear error its factual findings.
Hardy v. Comm’r, 181 F.3d 1002, 1004 (9th Cir. 1999). We affirm.
The Tax Court properly concluded that the IRS’s use of bank deposits and
cash expenditures to reconstruct MacGregor’s income was appropriate, and that the
IRS’s deficiency assessment was presumed correct unless MacGregor produced
evidence to rebut the calculations. See Choi v. Comm’r, 379 F.3d 638, 639-40 (9th
Cir. 2004) (when a taxpayer fails to maintain or produce adequate records of
income, the IRS may use indirect methods to determine tax liability); Welch v.
Comm’r, 204 F.3d 1228, 1230 (9th Cir. 2000) (deposits are prima facie evidence of
income, and it is taxpayer’s burden to prove they are not taxable); Hardy, 181 F.3d
at 1004 (deficiency determinations are entitled to presumption of correctness if IRS
relies on “substantive evidence that the taxpayer received unreported income”).
The Tax Court did not commit clear error in finding that MacGregor was not
entitled to deductions for alleged marketing expenses and repayment of a loan
because MacGregor offered no evidence to support the deductions. See Sparkman
v. Comm’r, 509 F.3d 1149, 1159 (9th Cir. 2007) (taxpayer bears burden of “clearly
showing” right to claimed deduction); Welch, 204 F.3d at 1230 (taxpayer must
establish that income resulted from a nontaxable loan).
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The Tax Court did not abuse its discretion in refusing to consider documents
attached to MacGregor’s post-trial brief purporting to show her additional
investment in a partnership and that a settlement payment was reimbursement for
medical expenses. See T.C. R. 143(c) (ex parte statements and unadmitted
allegations do not constitute evidence); Rivera v. Baker West, Inc., 430 F.3d 1253,
1257 (9th Cir. 2005) (to show that the personal injury exclusion applies, taxpayer
must establish “a direct causal link between the damages and the personal injuries
sustained” (citation and internal quotation marks omitted)); Alexander Shokai, Inc.
v. Comm’r, 34 F.3d 1480, 1488 (9th Cir. 1994) (evidentiary rulings reviewed for
an abuse of discretion).
Contrary to MacGregor’s argument on appeal, the Tax Court did not err by
failing to address arguments raised in her computation statement because the court
had expressly addressed them in its memorandum of decision, and a computation
statement “cannot be used to reopen the evidence.” Erhard v. Comm’r, 46 F.3d
1470, 1480 (9th Cir. 1995).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985-86 n.2 (9th Cir.
2009) (per curiam).
AFFIRMED.
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