BEVERLY CLARK COLLECTION, LLC, Nelson Clark, Tax Matters Partner v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEVERLY CLARK COLLECTION, LLC,
Nelson Clark, Tax Matters Partner
Petitioner-Appellee,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellant.
No. 20-70472
Tax Ct. No. 27538-08
MEMORANDUM*
On Petition for Review of an Order of the
of the United States Tax Court
Argued and Submitted June 7, 2021
Portland, Oregon
Before: WARDLAW, HURWITZ, Circuit Judges, and BOLTON,** District Judge.
The Commissioner of Internal Revenue appeals the Tax Court’s summary
judgment in favor of Beverly Clark Collection, LLC (“Petitioner”) on statute-of-
limitations grounds. We have jurisdiction under 26 U.S.C. § 7482(a)(1), and we
review the Tax Court’s grant of summary judgment de novo. Sollberger v. Comm’r,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
FILED
JUN 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2
691 F.3d 1119, 1123 (9th Cir. 2012). We affirm.
The Tax Court properly granted summary judgment because the
Commissioner’s Final Partnership Administrative Adjustment of Petitioner’s Form
1065 for tax year 2000 was issued outside of the applicable three-year limitations
period in 26 U.S.C. § 6501(a). A six-year limitations period does not apply because
Nelson and Beverly Clarks’ partial reporting of gain from the transaction at issue
was not an “omi[ssion]” under 26 U.S.C. § 6501(e)(1)(A) (2000). See Colony, Inc.
v. Comm’r, 357 U.S. 28, 32 (1958) (defining “omit” in predecessor statute as “[t]o
leave out or unmentioned; not to insert, include, or name”); United States v. Home
Concrete & Supply, LLC, 566 U.S. 478, 482 (2012) (elaborating that “‘omit’ limits
[§ 6501(e)(1)(A)]’s scope to situations in which specific receipts or accruals of
income are left out of the computation of gross income”). We find unpersuasive the
Commissioner’s attempt to distinguish Colony, Inc. and Home Concrete & Supply,
LLC and also his invitation to rely on out-of-circuit authority predating Home
Concrete & Supply, LLC.
AFFIRMED.

-- 2 of 2 --