DONALD MACPHERSON V. CIR, No. 16-71795 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 16 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DONALD MACPHERSON, Petitioner-Appellant, No. 16-71795 Tax Ct. No. 14545-12L and MEMORANDUM* ESTATE OF JUDITH A. MAY, DECEASED; et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. DONALD MACPHERSON, Petitioner-Appellant, No. 16-72599 Tax Ct. No. 26662-10L and LEONARD L. BEST and EVELYN R. BEST, Petitioners, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 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 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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