                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 07 2011

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




                            FOR THE NINTH CIRCUIT



STEVAN E. PELIKAN; DEBORAH A.                    No. 08-70482
PELIKAN,
                                                 CIR No. 7607-06
               Petitioners - Appellants,

  v.                                             MEMORANDUM *

COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Stevan E. and Deborah A. Pelikan appeal pro se from the Tax Court’s

decision after a trial upholding the denial of innocent spouse relief to Stevan under

26 U.S.C. § 6015(b) and (f) from joint liability for tax deficiencies in 1999. We


          *
             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).
have jurisdiction under 26 U.S.C. § 7482(a)(1). We review for clear error the Tax

Court’s finding that Stevan is not entitled to innocent spouse relief under

§ 6015(b). Wiksell v. Comm’r, 90 F.3d 1459, 1461 (9th Cir. 1996). We review de

novo the Tax Court’s decision whether the Commissioner of Internal Revenue

abused his discretion in denying equitable relief under § 6015(f). Fargo v.

Comm’r, 447 F.3d 706, 709 (9th Cir. 2006); United States v. Washington, 157 F.3d

630, 642 (9th Cir. 1998). We affirm.

      The Tax Court did not clearly err by finding that Stevan was not entitled to

innocent spouse relief under § 6015(b) because there was evidence showing that

the understatement of tax was not solely attributable to Deborah, that Stevan knew

or had reason to know of the understatement, and that it would not be inequitable

to hold Stevan liable for the deficiency. See 26 U.S.C. § 6015(b); Ordlock v.

Comm’r, 533 F.3d 1136, 1139 (9th Cir. 2008) (requirements to qualify for innocent

spouse relief under § 6015(b)). Contrary to the Pelikans’ contention, the standard

set forth in Culver v. Commissioner, 116 T.C. 189 (2001), is inapplicable, because

Culver concerns § 6015(c), and Stevan stipulated that he was not entitled to relief

under that section.

      The Tax Court properly concluded that the Commissioner did not abuse his

discretion by denying Stevan equitable relief under § 6015(f). See 26 U.S.C.


                                          2                                     08-70482
§ 6015(f); Rev. Proc. 2003-61 § 4.03(2) (nonexclusive list of factors for

determining whether to grant equitable relief under § 6015(f)).

          We do not consider whether the Tax Court erred by sustaining the

negligence penalty imposed under 26 U.S.C. § 6662 because the issue was not

raised in the opening brief. See Friends of Yosemite Valley v. Kempthorne, 520

F.3d 1024, 1033 (9th Cir. 2008) (deeming waived issues not raised in the opening

brief).

          The Pelikans’ remaining contentions are unpersuasive.

          AFFIRMED.




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