                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                             JUL 22 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

RICHARD KELBY; MABEL KELBY,                      No. 09-73286

               Petitioners -Appellants,          Tax Ct. No. 13268-03L

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                           Appeal from a Decision of the
                             United States Tax Court

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Richard and Mabel Kelby appeal from the Tax Court’s decision denying

their request for litigation costs pursuant to 26 U.S.C. § 7430. We have

jurisdiction under 26 U.S.C. § 7482(a)(1). We review for an abuse of discretion.

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

          *
             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).
      The Tax Court did not abuse its discretion in determining that the

Commissioner’s position on the 1989 tax liability was substantially justified, and

thus the Kelbys were not the prevailing party, given the Kelbys’ failure to turn over

Mabel Kelby’s notes until more than three years after the Kelbys filed their petition

for review. See 26 U.S.C. § 7430 (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.”).

      The Kelbys’ remaining contentions are unpersuasive.

      AFFIRMED.




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