Ninth Circuit Affirms Tax Court, Holds FPAA Was Untimely

BEVERLY CLARK COLLECTION, LLC,
Nelson Clark, Tax Matters Partner
Petitioner-Appellee,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellant.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

On Petition for Review of an Order of the
of the United States Tax Court

Argued and Submitted June 7, 2021
Portland, Oregon

MEMORANDUM^*

Before: WARDLAW, HURWITZ, Circuit Judges, and BOLTON,^** District Judge.

The Commissioner of Internal Revenue appeals the Tax Court's summary judgment in favor of Beverly Clark Collection, LLC (“Petitioner”) on statute-of-limitations grounds. We have jurisdiction under 26 U.S.C. § 7482(a)(1), and we review the Tax Court's grant of summary judgment de novo. Sollberger v. Comm'r, 691 F.3d 1119, 1123 (9th Cir. 2012). We affirm.

The Tax Court properly granted summary judgment because the Commissioner's Final Partnership Administrative Adjustment of Petitioner's Form 1065 for tax year 2000 was issued outside of the applicable three-year limitations period in 26 U.S.C. § 6501(a). A six-year limitations period does not apply because Nelson and Beverly Clarks' partial reporting of gain from the transaction at issue was not an “omi[ssion]” under 26 U.S.C. § 6501(e)(1)(A) (2000). See Colony, Inc. v. Comm'r, 357 U.S. 28, 32 (1958) (defining “omit” in predecessor statute as “[t]o leave out or unmentioned; not to insert, include, or name”); United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 482 (2012) (elaborating that “'omit' limits [§ 6501(e)(1)(A)]'s scope to situations in which specific receipts or accruals of income are left out of the computation of gross income”). We find unpersuasive the Commissioner's attempt to distinguish Colony, Inc. and Home Concrete & Supply, LLC and also his invitation to rely on out-of-circuit authority predating Home Concrete & Supply, LLC.

AFFIRMED.