Gerencser v. Commissioner

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ERIC STEPHEN GERENCSER, No. 17-70134

Petitioner-Appellant, Tax Ct. No. 8381-14

v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,

Respondent-Appellee.

Appeal from a Decision of the
United States Tax Court

Submitted October 23, 2017**

Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.

Eric Stephen Gerencser appeals pro se from the Tax Court’s decision,

following a bench trial, upholding the Commissioner of Internal Revenue’s

determination of deficiencies and penalties for the tax years 2010 and 2011. We

have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo conclusions of

*
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).
law and for clear error questions of fact. Hardy v. Comm’r, 181 F.3d 1002, 1004

(9th Cir. 1999). We affirm.

The Tax Court properly determined that Gerencser was not entitled to the

foreign tax credit for tax years 2010 and 2011 because Gerencser had not paid any

foreign taxes, and he failed to establish that he had accrued any foreign tax

liability. See 26 U.S.C. §§ 901, 905 (explaining the foreign tax credit). Contrary

to Gerencser’s contention, the Tax Court did not err in failing to shift the burden of

proof to the Commissioner because Gerencser failed to provide credible evidence.

See id. § 7491(a) (requirements for shifting burden of proof to Commissioner); see

also Hardy, 181 F.3d at 1004-05 (describing the general burden of proof in

deficiency cases).

The Tax Court properly determined that Gerencser was liable for accuracy-

related penalties because Gerencser was negligent in claiming both the foreign tax

credit and the foreign earned income exclusion, and he failed to establish

reasonable cause and good faith. See 26 U.S.C. §§ 6662 (accuracy-related penalty

imposed when underpayment is substantial or due to taxpayer’s negligence); 26

U.S.C. § 6664(c)(1) (penalty should not be imposed for underpayment where

reasonable cause and good faith are demonstrated); see also Sparkman v. Comm’r,

509 F.3d 1149, 1161 (9th Cir. 2007) (defining negligence as any failure to make a

reasonable attempt to comply with the Internal Revenue Code).

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 We reject as without merit Gerencser’s contentions regarding his NATO

wages, the preclusive effect of his tax case from tax year 2009, the applicability of

the tax treaty between the United States and Germany, and whether he received

due process.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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