                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KENNETH A. MANDEL,                               No. 11-72652

               Petitioner - Appellant,           Tax Ct. No. 361-09

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                          Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Kenneth A. Mandel appeals pro se from the Tax Court’s decision denying

his request for litigation and administrative costs under 26 U.S.C. § 7430. We

have jurisdiction under 26 U.S.C. § 7482(a). We review for an abuse of discretion.




          *
             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).
Huffman v. Comm’r, 978 F.2d 1139, 1143 (9th Cir. 1992). We affirm.

      The Tax Court did not abuse its discretion in determining that Mandel was

not the prevailing party because the Commissioner’s position on the

accuracy-related penalty for tax year 2005, for negligence under 26 U.S.C.

§ 6662(a), was substantially justified, given Mandel’s failure to turn over his

contemporaneous basis workpapers until seven months after he filed his petition

for review. See 26 U.S.C. § 7430(c)(4)(B)(i) (a party is not a “prevailing party” if

the Commissioner’s position was substantially justified); 26 C.F.R.

§ 301.7430-5(c)(1) (“A significant factor in determining whether the position of

the Internal Revenue Service is substantially justified as of a given date is whether,

on or before that date, the taxpayer has presented all relevant information under the

taxpayer’s control . . . to the appropriate Internal Revenue Service personnel.”).

      AFFIRMED.




                                           2                                      11-72652
