John Henry Besaw v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN HENRY BESAW,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 16-70264
Tax Ct. No. 893-14
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
John Henry Besaw 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. We have jurisdiction under 26 U.S.C. § 7482(a)(1).
We review de novo the Tax Court’s legal conclusions and for clear error its factual
* 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).
FILED
AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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findings. Hardy v. Comm’r, 181 F.3d 1002, 1004 (9th Cir. 1999). We affirm.
The Tax Court did not clearly err in determining that Besaw failed to
produce sufficient evidence to demonstrate his entitlement to deductions. See
Sparkman v. Comm’r, 509 F.3d 1149, 1159 (9th Cir. 2007) (taxpayer bears burden
of showing right to claimed deduction). Contrary to Besaw’s contention, the Tax
Court did not err in failing to shift the burden of proof to the Commissioner. See
26 U.S.C. § 7491(a) (requirements for shifting burden of proof to Commissioner).
The Tax Court did not err by imposing penalties for Besaw’s underpayment
of tax due to his substantial understatement of income tax. See 26 U.S.C.
§ 6662(a), (b)(2) (authorizing penalty equal to 20% of the underpayment for,
among other things, a substantial understatement of income tax); id.
§ 6662(d)(1)(A) (defining substantial understatement); DJB Holding Corp. v.
Comm’r, 803 F.3d 1014, 1022 (9th Cir. 2015) (standard of review).
The Tax Court did not abuse its discretion in not admitting certain
documents, including those created during the audit. See Clapp v. Comm’r, 875
F.2d 1396, 1403 (9th Cir. 1989) (tax court’s determination of a tax deficiency is a
de novo proceeding on the merits); Sparkman, 509 F.3d at 1156 (standard of
review for evidentiary rulings).
We reject as unsupported by the record Besaw’s contention that the Tax

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Court erred in not granting his motion to dismiss for lack of jurisdiction.
AFFIRMED.

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