                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 3 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ROBERT E. CLAYTON; MAI NGUYEN,                   No. 12-73904

               Petitioners - Appellants,         Tax Ct. No. 21565-10

  v.
                                                 MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.


                            Appeal from a Decision of the
                              United States Tax Court

                          Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Robert Clayton and Mai Nguyen appeal pro se from the Tax Court’s

decision, after a bench trial, upholding the Commissioner of Internal Revenue’s

determination of an income tax deficiency for tax year 2008. We have jurisdiction

under 26 U.S.C. § 7482(a). We review de novo the Tax Court’s legal conclusions

          *
             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).
and for clear error its findings of fact. Johanson v. Comm’r, 541 F.3d 973, 976

(9th Cir. 2008). We affirm.

       The Tax Court properly upheld the Commissioner’s determination of

deficiencies because appellants failed to establish that they met the requirements of

§ 501(d), where they presented no evidence that their organization had a common

or community treasury of which members were paid a pro rata share. See 26

U.S.C. § 501(d); Kleinsasser v. United States, 707 F.2d 1024, 1029 (9th Cir. 1983)

(“The only requirements for the exemption are that there be a common treasury,

that the members of the organization include pro rata shares of organization

income when reporting taxable income and, implicitly, that the organization have a

religious or apostolic character.”); see also Davis v. Comm’r, 394 F.3d 1294, 1298

n.2 (9th Cir. 2005) (“The taxpayer bears the burden of showing that he or she

meets every condition of a tax exemption or deduction.”).

       The Tax Court did not abuse its discretion by denying appellants’ motion to

vacate. See Thomas v. Lewis, 945 F.2d 1119, 1123-24 (9th Cir. 1991) (setting

forth standard of review and determining that the denial of a motion to vacate was

not an abuse of discretion where moving party provided no basis for vacating

earlier order).




                                          2                                    12-73904
     We reject as without merit appellants’ contentions regarding alleged First

Amendment violations.

     AFFIRMED.




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