Unpublished Disposition, 900 F.2d 262 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 900 F.2d 262 (9th Cir. 1990)

Wilbur F. CARY, Petitioner-Appellant,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee.

No. 88-7252.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 24, 1990.* Decided April 23, 1990.

Before JAMES R. BROWNING, KILKENNY and RYMER, Circuit Judges.


* Appellant Cary appeals from the tax court's decision affirming the Commissioner's determination of deficiencies and additions to tax for 1981 and assessment of a penalty against Cary under 26 U.S.C. § 6673 (Supp. V 1987). We affirm the tax court.

The tax court's determination that Cary did not sustain his burden of proof in contesting the Commissioner's assessment of deficiency is a finding of fact, which we review for clear error. See Mayors v. Commissioner, 785 F.2d 757, 759 (9th Cir. 1986). A court's imposition of a penalty under 26 U.S.C. § 6673 is reviewed for abuse of discretion. Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir. 1985).


Cary failed to file an income tax return for 1981. In 1986, the Commissioner notified Cary that it had assessed a deficiency and additions to tax against him for that year.1  Cary petitioned the tax court for a redetermination of the deficiency, claiming that the assessment did not take into consideration certain deductions. Cary's petition did not specify either the type or amount of the claimed deductions.

In February 1987, Cary filed a 1981 income tax return, in which he claimed deductions for a number of business expenses. He did not, however, amend his petition for redetermination to specify these deductions. Furthermore, Cary never produced documents substantiating these deductions. At trial, he introduced into evidence a copy of his master file from the IRS and a letter from Cary to the IRS claiming refunds due for business losses. Although Cary claims he brought invoices and check stubs with him to the hearing, and further claims that opposing counsel refused to examine the documents, the record shows that Cary did not attempt to offer any of these materials into evidence at trial.


The tax court did not err in affirming the Commissioner's assessment of deficiency and additions to tax. Cary had the burden of presenting evidence proving the Commissioner's assessment incorrect and proving he was entitled to claim the deductions. Smith v. Commissioner, 800 F.2d 930, 933 (9th Cir. 1986); Rockwell v. Commissioner, 512 F.2d 882, 885 (9th Cir.), cert. denied, 423 U.S. 1015 (1975).

Although Cary asserts that he brought the relevant proof with him to trial, he refused to offer it into evidence.2  Papers not filed or admitted into evidence are not part of the record to be considered on appeal. Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988).

The Commissioner's assessments are presumed correct unless rebutted by an evidentiary showing. See Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir. 1982); Rockwell, 512 F.2d at 885. Because Cary presented no evidence to substantiate his claimed deductions, the trial court's affirmance of the Commissioner's assessment was not an abuse of discretion.


The tax court's assessment of damages under 26 U.S.C. § 6673 was also within its discretion. Section 6673 provides for damages when a taxpayer brings a case primarily for the purpose of delay, or when the taxpayer takes a frivolous or unsupportable position. See Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir. 1985). The tax court found that Cary's suit was instituted and maintained primarily for delay because (1) Cary refused to exchange documents with opposing counsel prior to trial; (2) Cary only showed opposing counsel his 1981 tax return on the day of trial, when ordered to do so by the court; (3) Cary failed to produce any documents to support his claimed deductions. The record supports these findings. The tax court therefore did not abuse its discretion in awarding damages against Cary.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The Commissioner determined deficiencies and additions to tax as follows: (1) $6,715 deficiency in payment of income tax; (2) $335.75 addition to tax under 26 U.S.C. § 6653(a) (1) (Supp. V 1987); (3) Fifty percent of interest due on $6,715; (4) $1,678.75 addition to tax under 26 U.S.C. § 6651(a) (1982); and (5) $514.97 addition to tax under 26 U.S.C. § 6654(a) (Supp. V 1987)


Cary claims that he did not introduce the documents because he feared the court would lose his originals. He claims that, because he appeared pro se, the court had the responsibility of either reassuring him that his documents would not be lost or calling a recess so that copies could be made. However, Cary did not request either a continuance or a recess; in fact, he never sought to introduce the documents at all. The court did not have the duty Cary seeks to impose upon it. See Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986)