Danny Fabricant v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY FABRICANT,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 17-71284
Tax Ct. No. 25843-14
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Danny Fabricant appeals pro from the Tax Court’s decision denying his
request for litigation costs under 26 U.S.C. § 7430. We have jurisdiction under 26
U.S.C. § 7482(a)(1). We review for an abuse of discretion. Huffman v. Comm’r,
978 F.2d 1139, 1143 (9th Cir. 1992). We affirm.
* 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 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 17-71284
The Tax Court did not abuse its discretion by denying Fabricant’s request
for litigation costs because the Commissioner’s position was substantially justified,
given Fabricant’s initial failure to provide the Commissioner with all relevant
information to establish that he was not self-employed during tax year 2011. See
26 U.S.C. § 7430(c)(4)(B)(i) (a party is not a “prevailing party” for purposes of an
award of costs if the Commissioner’s position was substantially justified); 26
C.F.R. § 301.7430-5(d)(1) (“A significant factor in determining whether the
position of the Internal Revenue Service is substantially justified as of a given date
is whether, on or before that date, the taxpayer has presented all relevant
information under the taxpayer’s control . . . to the appropriate Internal Revenue
Service personnel.”); see also United States v. Yochum (In re Yochum), 89 F.3d
661, 672-72 (9th Cir. 1996) (holding that the government’s position was
substantially justified because the taxpayer failed to provide sufficient evidence in
support of his position prior to the issuance of the notice of deficiency).
AFFIRMED.

-- 2 of 2 --