FILED
NOT FOR PUBLICATION NOV 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO RIOS, No. 12-72440
Petitioner - Appellant, Tax Ct. No. 3861-09
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted November 19, 2014**
Pasadena, California
Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.
The United States Tax Court found Armando Rios (“Rios”) liable for tax
deficiencies and additions for failing to timely file income tax returns for the 2003,
2005, 2006, and 2007 tax years. Rios appeals the tax court’s decision that he failed
to establish entitlement for gambling-loss deductions for the 2003 and 2006 tax
*
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).
years.1 We have jurisdiction pursuant to I.R.C. § 7482. We review the tax court’s
factual determinations for clear error, Sparkman v. Comm’r, 509 F.3d 1149, 1159
(9th Cir. 2007), and we affirm.
The burden is on the taxpayer “to maintain records sufficient to establish the
amount of deductions.” Norgaard v. Comm’r, 939 F.2d 874, 878 (9th Cir. 1991)
(citing 26 C.F.R. § 1.6001–1). Rios did not testify to his gambling losses, nor did
he produce contemporaneous records of his gambling wins and losses, such as
tickets, receipts, diaries, logs, wagering tickets, canceled checks, credit records, or
bank deposits or withdrawals. See Rev. Proc. 77-29, 1977-2 C.B. 538, 1977 WL
42691 (listing documents that reliably establish gambling winnings and losses).
The tax court therefore did not clearly err in finding that Rios’s
evidence—consisting entirely of seven pages of unexplained, non-
contemporaneous documentation—was insufficient to substantiate his claim that he
was entitled to deductions for gambling losses for tax years 2003 and 2006. See
Norgaard, 939 F.2d at 878-79.
Moreover, the tax court did not clearly err in failing to estimate Rios’s
1
Rios waived his arguments relating to his remaining claims. See United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (Claims are ordinarily waived
when they “are not specifically and distinctly argued in the appellant’s opening
brief.” (internal quotation marks omitted)).
2
allowable deductible expenditures pursuant to the rule set out in Cohan v.
Commissioner, 39 F.2d 540 (2d Cir. 1930) (“Cohan rule”). For Rios “to qualify
for the estimation treatment under Cohan, [he] must establish that he is entitled to
some deduction.” Norgaard, 939 F.2d at 879 (emphasis added). Because the tax
court did not clearly err when it determined Rios failed to establish that he is
entitled to any deduction, the Cohan rule does not apply. See id.
AFFIRMED.
3