Jones, Bell, Abbott, Fleming & Fitzgerald L.l.p. v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONES, BELL, ABBOTT, FLEMING &
FITZGERALD L.L.P.,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 18-55934
D.C. No. 2:17-cv-07752-PA-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted October 15, 2019**
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
Jones, Bell, Abbot, Fleming & Fitzgerald L.L.P. appeals from the district
court’s judgment dismissing its 28 U.S.C. § 1346(a)(1) action arising from the
Internal Revenue Service’s (“IRS”) assessment of a tax penalty for the late filing of
appellant’s 2015 partnership return. We have jurisdiction under 28 U.S.C. § 1291.
* 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
OCT 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-55934
We review de novo a district court’s judgment under Federal Rule of Civil
Procedure 52(c). Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir. 1994). We
affirm.
The district court properly determined that appellant’s evidence was
insufficient to show that it timely mailed an application for a tax return filing
extension. See Lewis v. United States, 144 F.3d 1220, 1222-23 (9th Cir. 1998) (a
taxpayer must provide “credible evidence” of timely mailing of a document in
order to a raise a rebuttable presumption that the document was timely received by
the addressee). The district court therefore properly concluded that the IRS
properly assessed a penalty against appellant for not timely filing its 2015
partnership return.
AFFIRMED.

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