NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 22 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
RICHARD KELBY; MABEL KELBY, No. 09-73286
Petitioners -Appellants, Tax Ct. No. 13268-03L
v.
MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Richard and Mabel Kelby appeal from the Tax Court’s decision denying
their request for litigation costs pursuant to 26 U.S.C. § 7430. We have
jurisdiction under 26 U.S.C. § 7482(a)(1). We review for an abuse of discretion.
Huffman v. Comm’r, 978 F.2d 1139, 1143 (9th Cir. 1992). We affirm.
*
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).
The Tax Court did not abuse its discretion in determining that the
Commissioner’s position on the 1989 tax liability was substantially justified, and
thus the Kelbys were not the prevailing party, given the Kelbys’ failure to turn over
Mabel Kelby’s notes until more than three years after the Kelbys filed their petition
for review. See 26 U.S.C. § 7430 (a party is not a “prevailing party” if the
Commissioner’s position was substantially justified); 26 C.F.R. § 301.7430-5(c)(1)
(“A significant factor in determining whether the position of the Internal Revenue
Service is substantially justified as of a given date is whether, on or before that
date, the taxpayer has presented all relevant information under the taxpayer’s
control . . . to the appropriate Internal Revenue Service personnel.”).
The Kelbys’ remaining contentions are unpersuasive.
AFFIRMED.
2 09-73286