Penford Corporation v. Natl. Union Fire Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1725
___________
Michael C. Hollen, D.D.S., P.C., *
*
Appellant, *
* Appeal from the United
v. * States Tax Court.
*
Commissioner of Internal Revenue, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: November 10, 2011
Filed: November 16, 2011
___________
Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
___________
PER CURIAM.
Michael C. Hollen, D.D.S., P.C., appeals the tax court’s 1 decision sustaining a
determination by the Commissioner of Internal Revenue that its employee stock
ownership plan did not qualify under 26 U.S.C. § 401(a), and that its employee stock
ownership trust was not exempt under 26 U.S.C. § 501(a), for the plan year ending in
1987 and all subsequent plan years. Having carefully reviewed the record and the
parties’ arguments on appeal, we agree with the tax court’s decision and find no basis
for reversal. See Steel Balls, Inc. v. Comm’r, 69 T.C.M. (CCH) 2912, 2918-19 (1995)
(Commissioner was “clearly within the allowable range of discretion” when he
1The Honorable David Laro, United States Tax Court Judge.

-- 1 of 2 --

recharacterized certain dividends as employer contributions), aff’d 89 F.3d 841 (8th
Cir. 1996) (unpublished per curiam); see also Namyst v. Comm’r, 435 F.3d 910, 912
(8th Cir. 2006) (standards of review); Campbell v. Comm’r, 164 F.3d 1140, 1142 (8th
Cir. 1999) (decisions of tax court are reviewed on same basis as decisions from civil
trial before federal district court; taxpayer bears burden of proving that determination
made by Commissioner was erroneous); cf. Stearns v. Hertz Corp., 326 F.2d 405, 408
(8th Cir. 1964) (in case involving appeal from civil action, affidavit produced for first
time in reply brief appendix would not be considered because it was not presented to
trial court; appeal is to be determined upon record below). Accordingly, we affirm.
See 8th Cir. R. 47B.
______________________________
- 2-

-- 2 of 2 --