Donald Macpherson v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD MACPHERSON,
Petitioner-Appellant,
and
ESTATE OF JUDITH A. MAY,
DECEASED; et al.,
Petitioners,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 16-71795
Tax Ct. No. 14545-12L
MEMORANDUM*
DONALD MACPHERSON,
Petitioner-Appellant,
and
LEONARD L. BEST and EVELYN R.
BEST,
Petitioners,
No. 16-72599
Tax Ct. No. 26662-10L
FILED
NOV 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted November 14, 2017**
San Francisco, California
Before: THOMAS, Chief Circuit Judge, PAEZ, Circuit Judge, and SAVAGE,***
District Judge.
Attorney Donald W. MacPherson appeals the Tax Court’s imposition of
sanctions in two cases in which he counseled his taxpayer clients to maintain
frivolous positions. We have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1), and
we affirm. Because the parties are familiar with the history of this case, we need
not recount it here.
The Tax Court did not abuse its discretion in ordering MacPherson to pay
excess costs pursuant to 26 U.S.C. § 6673(a)(2). See Grimes v. CIR, 806 F.2d
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Timothy J. Savage, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2

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1451, 1454 (9th Cir. 1986) (standard of review). MacPherson “multiplied the
proceedings in [both cases] unreasonably and vexatiously.” 26 U.S.C.
§ 6673(a)(2). He “knowingly or recklessly raise[d] a frivolous argument.” Moore
v. Keegan Mgmt. Co. (In re Keegan Mgmt. Co. Sec. Litig.), 78 F.3d 431, 436 (9th
Cir. 1996). On behalf of his clients, he advanced a position contrary to established
law and unsupported by fact. In a signed declaration, he represented that he knew
his position would be unsuccessful. The Tax Court appropriately ordered
MacPherson to pay only those costs incurred in responding to MacPherson’s
frivolous arguments. See Moore, 78 F.3d at 435.
AFFIRMED.
3

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