Hom v. Commissioner

MEMORANDUM ** John C. Horn appeals pro se from the Tax Court’s order denying his petition challenging assessed tax deficiencies for tax years 2005 through 2008. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo the Tax Court’s legal conclusions, Ann Jackson Family Found. v. Comm’r, 15 F.3d 917, 920 (9th Cir.1994), and for clear error its factual determinations, Hansen v. Comm’r, 471 F.3d 1021, 1028 (9th Cir.2006). We affirm. The Tax Court properly concluded that the notice of deficiency was valid because Horn did not demonstrate that he suffered any prejudice due to an error in the notice of deficiency. See Elings v. Comm’r, 324 F.3d 1110, 1111-13 (9th Cir.2003) (notice of deficiency valid where error is of a minor, technical nature and there is no showing of prejudice to taxpayer). Contrary to Horn’s contention, the Commissioner’s stipulations to certain claimed deductions did not disturb the presumption of correctness as to other calculations in the notice. Hardy v. Comm’r, 181 F.3d 1002, 1005 (9th Cir.1999). Moreover, the Tax Court properly concluded that the notice of deficiency, as it pertained to tax year 2007, was valid because the Commissioner made a determination of Horn’s 2007 tax deficiency based on a substitute tax return. See 26 U.S.C. § 6020(b) (Commissioner permitted to prepare substitute tax return where taxpayer fails to file timely return that is “prima facie good and sufficient for all legal purposes”); Kantor v. Comm’r, 998 F.2d 1514, 1521-22 (9th Cir.1993) (explaining that a notice of deficiency is valid unless it “reveal[s] on its face that a determination had not been made using the taxpayer’s return”). The Tax Court properly concluded that Horn failed to substantiate his claimed deductions for gambling expenses. See Sparkman v. Comm’r, 509 F.3d 1149, 1159 *589 (9th Cir.2007) (taxpayer bears the burden of clearing showing the right to the claimed deduction); Norgaard, v. Comm’r, 939 F.2d 874, 879 (9th Cir.1991) (the trial court “may not be compelled to guess or estimate, ... even though such an estimate, if made, might have been affirmed” (citation and internal quotation marks omitted)). Moreover, the Tax Court properly concluded that 26 U.S.C. § 165(d) controlled Horn’s allowable deductions for gambling losses. See Boyd v. United States, 762 F.2d 1369, 1372-73 (9th Cir.1985) (“[The] losses at issue here are indubitably losses from wagering transactions, and section 165(d) therefore controls even if the losses are also business expenses within the meaning of section 162(a)”). We reject as unsupported Horn’s argument regarding the alleged loan he made to his company. We do not review the Tax Court’s denial of Horn’s motion to reopen the record because Horn has not demonstrated extraordinary circumstances to justify our review of that issue. See Devore v. Comm’r, 963 F.2d 280, 282 (9th Cir.1992) (“A tax court’s decision not to reopen a record for the submission of new evidence is not subject to review except upon a demonstration of extraordinary circumstances which reveal a clear abuse of discretion.” (internal quotation omitted)). We do not address matters not specifically and distinctly raised and argued in the opening brief or raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir.2009). AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.