Robert C. Gunther, et al v. Commissioner of Internal Revenue

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-11790
Non-Argument Calendar
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Agency No. 002834-16

ROBERT C. GUNTHER,
JAYNE C. GUNTHER,

Petitioners-Appellants,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.
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Petition for Review of a Decision of the
U.S. Tax Court
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(January 7, 2020)
Before WILLIAM PRYOR, NEWSOM and BRANCH, Circuit Judges.
PER CURIAM:
Case: 19-11790 Date Filed: 01/07/2020 Page: 1 of 2

2

Robert and Jayne Gunther appeal the denial of their motion to restrain the
collection of a penalty for gross valuation misstatement levied against them as
owners of a trust that was a partner in a partnership. 26 U.S.C. § 6662(h). The tax
court denied the Gunthers’ motion based on its lack of jurisdiction during their
partner-level deficiency proceeding to review a penalty assessed in a partnership-
level proceeding. We reached the same conclusion on the identical jurisdictional
issue in Highpoint Tower Technology Inc. v. Commissioner of Internal Revenue,
931 F.3d 1050, 1064–65 (11th Cir. 2019). The Gunthers concede that the “result in
[Highpoint] resolve[s] this case” because it involved same partnership and
“substantially similar” transactions as engaged in by their trust. And the
Commissioner of Internal Revenue requests summary affirmance based on
Highpoint. The Supreme Court recently denied the petition for a writ of certiorari
in Highpoint, so it is the law of the case and bars the Gunthers’ challenge to the
decision of the tax court. See United States v. Jordan, 429 F.3d 1032, 1035 (11th
Cir. 2005). Because that decision “is clearly right as a matter of law so that there
[is] no substantial question as to the outcome of the case,” Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), we grant the Commissioner’s
motion for summary affirmance.
AFFIRMED.
Case: 19-11790 Date Filed: 01/07/2020 Page: 2 of 2