                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 27 2012

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




                            FOR THE NINTH CIRCUIT



TOM GONZALES, as Personal                        No. 11-15561
Representative of the Estate of Thomas J.
Gonzales, II,                                    D.C. No. 4:08-cv-03189-SBA

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

UNITED STATES OF AMERICA;
DEPARTMENT OF TREASURY;
INTERNAL REVENUE SERVICE,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                        Argued and Submitted July 16, 2012
                            San Francisco, California

Before: FERNANDEZ and PAEZ, Circuit Judges, and SETTLE, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
      Tom Gonzales, Sr. (“Appellant”), in his capacity as the personal

representative of the estate of his son, Thomas J. Gonzales, II (“Gonzales”),

appeals the district court’s grant of summary judgment to the Government on his

complaint for a refund of federal income taxes. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1.    Appellant failed to raise a genuine dispute of material fact as to whether

Gonzales entered into the Presidio transaction “primarily for profit.” See Landreth

v. Commissioner, 859 F.2d 643, 648 (9th Cir. 1988). Two witnesses with firsthand

knowledge of Gonzales’s involvement in the transaction—Gonzales’s accountant,

Steve Smith, and his stockbroker, Robert Gallo—testified that Gonzales made the

investment primarily to reduce his tax liability by generating a capital loss.

Appellant’s evidence that the transaction could theoretically have yielded a profit,

including Bruce Lemons’s opinion letter stating that the transaction was a

legitimate investment, did not contravene the Government’s evidence of primary

motive.

2.    Appellant’s second refund claim, stemming from an $8.6 million net

operating loss that Gonzales claimed on his 2001 tax return, is time-barred.

Appellant and the IRS agreed to extend the period in which the IRS could assess a

tax for the 2001 tax year to December 31, 2006. See 26 U.S.C. § 6501(c)(4). The

statutory deadline for filing a refund claim was therefore six months after that date:
June 30, 2007. See id. § 6511(c)(1). Appellant filed the untimely refund claim on

August 17, 2007.

         Appellant argues that the IRS’s issuance of a Notice of Deficiency to the

estate on December 6, 2006, extended the limitations period for filing a claim of

refund to November 30, 2007. But the Notice of Deficiency on which Appellant

relies related to the 2000 tax year, not the 2001 tax year in which Gonzales claimed

he suffered the net operating loss. Thus, even if we were persuaded that a Notice of

Deficiency can affect the limitations period for filing a claim for refund, we would

conclude that the deadline was unaffected in this case.

         Appellant further argues that the limitations period was extended by

Gonzales’s death in 2001, pursuant to the provisions of the Internal Revenue Code

governing transferred assets. Id. § 6901. Section 6901(c) extends the period of

limitations for assessment of tax against a transferee. The statute has no equivalent

provision extending the period of limitations for a refund claim by a transferee.

Hence, Gonzales’s death did not alter the limitations period for filing the refund

claim.

         AFFIRMED.
