Unpublished Disposition, 930 F.2d 28 (9th Cir. 1991)

No. 90-70047.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,^**  District Judge.

MEMORANDUM^*** 

Petitioners challenge the Tax Court's decision to limit their casualty loss deduction to $30,000 as arbitrary and a clear error of law. They also assert that the Tax Court erred by refusing to grant their motion for leave to amend the complaint or to hold the record open so as to allow absent witnesses to testify.

A. Petitioners have the burden of proving the amount of deduction they are entitled to claim. Clapp v. Commissioner, 321 F.2d 12, 14 (9th Cir. 1963). They failed to prove the diminution in fair market value of their property or the actual cost expended in restoring the property to its pre-loss condition. ER 50-51. Absent such proof, the Tax Court properly estimated the amount petitioners were entitled to claim. Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987).

B. Nor did the Tax Court err by refusing to allow petitioners to amend the complaint. Petitioners offered no evidence that amending the complaint would have affected the outcome of this lawsuit. See Klamath-Lake Pharmaceutical Ass'n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983), cert. denied, 464 U.S. 822 (1983). Since amending the complaint would have been futile, the Tax Court did not abuse its discretion. See Thomas-Lazear v. FBI, 851 F.2d 1202, 1206 (9th Cir. 1988).

C. Because the Tax Court correctly concluded that petitioners did not establish the relevance of the proffered testimony, it did not abuse its discretion by refusing to hold the record open to allow post-trial testimony. See Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th Cir. 1985).

AFFIRMED.