Leonard Tobin v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD TOBIN,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 20-71585
Tax Ct. No. 13653-18
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted August 4, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Leonard William Tobin appeals pro se from the Tax Court’s decision,
following a bench trial, upholding the Commissioner of Internal Revenue’s
determination of deficiencies and imposition of penalties for tax year 2015. We
FILED
AUG 6 2021
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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have jurisdiction under 26 U.S.C. § 7482. We review the Tax Court’s legal
conclusions de novo and its factual findings for clear error. Hardy v. Comm’r, 181
F.3d 1002, 1004 (9th Cir. 1999). We affirm.
1. The Tax Court properly upheld the Commissioner’s deficiency
determination concerning Tobin’s unreported income. Tobin’s wages in 2015
were taxable income, and his arguments to the contrary are frivolous. Maisano v.
United States, 908 F.2d 408, 409 (9th Cir. 1990) (“This argument . . . is simply a
variation on the ‘wages are not income’ argument which we repeatedly have
rejected as frivolous and do so again here.”). The Tax Court correctly concluded
that Tobin’s 2015 wages were not excludable wages for services performed in
foreign countries because there was no evidence that Tobin filed an election to
exclude his foreign earned income under 26 U.S.C. § 911 or Treas. Reg. § 1.911-7
for the 2015 tax year or any previous tax year.
2. The Tax Court properly upheld the Commissioner’s deficiency
determination concerning Tobin’s health savings account distributions because he
failed to prove that he spent the distributions on his qualified medical expenses. 26
U.S.C. § 223(f).
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3. We do not consider arguments that are not specifically and distinctly
raised and argued in an appellant’s opening brief or arguments that are made for
the first time on appeal. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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