Unpublished Disposition, 878 F.2d 385 (9th Cir. 1989)

MEMORANDUM^** 

Bill and Kitty Frisbie appeal pro se the decision of the Tax Court sustaining the Commissioner's finding of deficiency on the Frisbies 1982 tax returns. We review the Tax Court's finding of facts for clear error, Mayors v. Commissioner, 785 F.2d 757, 759 (9th Cir. 1986), and affirm.

In 1986 the Commissioner issued a notice of deficiency in the amount of $1,466 to the Frisbies, based on the disallowance of certain deductions. The Frisbies filed a petition in the Tax Court contesting the asserted deficiency. Before the trial began, the Commissioner conceded that some of the deductions were allowable; also before the trial began, the Frisbies filed a motion to dismiss for lack of jurisdiction.

At trial, evidence indicated that the Frisbies had lost money to a fraudulent real estate scheme in the early 1970s. The Frisbies filed an application in 1975 for a tentative refund claiming a net operating loss in 1974, and filed a capital loss in 1982 based on the 1974 losses. The Internal Revenue Service no longer possessed copies of the Frisbies' tax returns for the years between 1974 and 1981, which were necessary to substantiate the nature of the 1974 loss and determine how much--if any--of the loss remained to be carried forward into 1982. Bill Frisbie stated that he had copies of the returns, but he refused to provide them to the Commissioner or the Tax Court. He also admitted that he was unsure whether state taxes claimed as a deduction had actually been paid in 1982.

The Tax Court held that it had jurisdiction and found that the Frisbies were $660 deficient in their tax payment for 1982.

The Tax Court properly concluded that it had jurisdiction. Timely filing of a petition in Tax Court precludes subsequent suits in district courts. 26 U.S.C. § 6512(a); see Russell v. Commissioner, 678 F.2d 782, 785 (9th Cir. 1982). Once a taxpayer invokes Tax Court jurisdiction the taxpayer cannot withdraw his or her suit and refile elsewhere. Warren Mfg. Co. v. Tait, 60 F.2d 982, 985 (D. Md. 1932); Wright v. Commissioner, 1985 T.C.M. (P-H) 85-469, 472-73 (1985), aff'd mem., 786 F.2d 1176 (9th Cir. 1986). Thus, the Frisbies, having invoked the Tax Court's jurisdiction in this case, cannot withdraw.

Furthermore, there is no clear error in the Tax Court's findings.¹  When "the Commissioner has made a deficiency determination, the taxpayer has 'the burden of producing enough evidence to rebut the deficiency determination and the burden of persuasion in substantiating a claimed deduction.' " Goldberg v. United States, 789 F.2d 1341, 1343 (9th Cir. 1986) (quoting Valley Title Co. v. Commissioner, 559 F.2d 1139, 1141 (9th Cir. 1977)).

At trial, not only did the Frisbies fail to produce any evidence to show that they were entitled to deduct state taxes, but Bill Frisbie also admitted that he could not remember whether the state taxes had actually been paid in 1982.

With regard to the claim of capital loss, the Commissioner does not dispute that the Frisbies suffered losses in 1974 or the amount. However, the Commissioner contends that the loss must be characterized as a net operating loss because it was so labeled in a document filed by Bill Frisbie in 1974. So characterized, the loss cannot be carried forward and set off against future income for more than five years after the loss occurred. 26 U.S.C. § 172(b) (1) (B). Thus, the Frisbies are timed barred from deducting this loss in 1982. At trial, Bill Frisbie contended only that his description of his loss on his 1982 return as a capital loss was based on an agreement previously concluded between himself and IRS agents in the 1970s. Despite being informed that he carried the burden of proof, he produced neither witnesses nor documents to substantiate his claim that the loss was a capital loss, or that there was an agreement. He also refused to produce copies of tax returns from 1974 to 1981 in his possession that might have determined the issue.

The Frisbies failed to meet their burden of proof. The Tax Court committed no error in its findings. See Goldberg, 789 F.2d at 1343.

AFFIRMED.