Nathaniel Caleb Avery v. Commissioner of Internal Revenue

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHANIEL CALEB AVERY,
Petitioner - Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
No. 07-72506
Tax Ct. No. 17315-05
MEMORANDUM*
Appeal from a Decision of the
United States Tax Court
Submitted September 22, 2010**
Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges.
The tax court properly upheld the tax determination because the
Commissioner presented “some substantive evidence” that Nathaniel Caleb Avery
(“Avery”) received unreported income, and Avery failed to submit any evidence
FILED
OCT 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-72506 2
showing “that the deficiency was arbitrary or erroneous.” Hardy v. Comm’r, 181
F.3d 1002, 1004 (9th Cir. 1999).
The tax court also properly upheld the late-filing addition to tax because
Avery did not file a tax return for 2002 or provide any evidence suggesting
reasonable cause for his failure to do so. See 26 U.S.C. § 6651(a)(1).
The tax court acted within its discretion when imposed a $5,000 penalty,
after finding that Avery had instituted the proceedings primarily for delay and had
advanced frivolous arguments. See 26 U.S.C. § 6673(a) (providing for sanctions
up to $ 25,000 where “proceedings . . . have been instituted or maintained by the
taxpayer primarily for delay” or where “the taxpayer’s position in such proceeding
is frivolous or groundless”); Grimes v. Comm’r, 806 F.2d 1451, 1454 (9th Cir.
1986) (per curiam).
Avery’s contention that the tax court judge was biased is not supported by
the record. See Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir.
1993) (adverse rulings alone are insufficient to demonstrate judicial bias).
Avery’s remaining contentions are unpersuasive.
AFFIRMED.

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