                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 12 2012

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




                            FOR THE NINTH CIRCUIT



WILLIAM F. HOLDNER,                              No. 11-71593

              Petitioner - Appellant,            Tax Ct. No. 10375-08

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

              Respondent - Appellee.



               Appeal from a Decision of the United States Tax Court


                           Submitted October 10, 2012 **
                                Portland, Oregon

Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.

       1. It was not clearly erroneous for the tax court to conclude that Holdner

Farms operated as a partnership between 2004 and 2006. The facts in the record

support the plausible inference that Holdner Farms operated as a partnership for


        *
             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).
federal tax purposes between 2004 and 2006: (a) Randal and William Holdner

operated Holdner Farms as a business; and (b) both contributed capital and labor to

the enterprise, managed its operations, shared the profits of the business, made

withdrawals from Holdner Farms’s bank account, and held out Holdner Farms as a

partnership. Comm’r v. Culbertson, 337 U.S. 733, 742 (1949); Luna v. Comm’r,

42 T.C. 1067, 1077-78 (1964).

      2. On de novo review, the Notice of Deficiency (NOD) was not inadequate;

it met the requirements of I.R.C. § 7522. There is no legal basis for Holdner’s

argument that the NOD was required to notify him of what would be relevant at

trial. But even if such a requirement did exist, the NOD in this case would satisfy

it. The NOD stated that the basis for the deficiency was that Holdner Farms had

operated as a partnership, but had not properly allocated the business’s expenses

between the partners. That information was sufficient to put Holdner on notice that

the issue of whether Holder Farms was a partnership for federal tax purposes

would be highly relevant at trial.

      3. Under Federal Rules of Evidence 611(a) and 614(b) (as applied to

proceedings in U.S. Tax Court by Tax Court Rule 143(a)), the tax court judge did

not abuse her discretion in her management of trial or questioning of witnesses.

The decision of the tax court is therefore

      AFFIRMED.
