                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WILLIAM FOOTE and ELIZABETH                      No. 14-70668
FOOTE,
                                                 Tax Ct. No. 12271-12
              Petitioners - Appellants,

 v.                                              MEMORANDUM*

COMMISSIONER OF INTERNAL
REVENUE,

              Respondent - Appellee.


                           Appeal from a Decision of the
                                    Tax Court

                          Submitted February 12, 2016**
                              Pasadena, California

Before: BERZON and OWENS, Circuit Judges, and MARBLEY,*** District Judge.




        *
             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 Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.
      Petitioners William and Elizabeth Foote appeal from the tax court’s

summary judgment in favor of the Commissioner. The tax court held that the

Footes were not entitled to an award of administrative costs and litigation expenses

incurred during their audit and deficiency proceedings. We have jurisdiction under

26 U.S.C. § 7482(a)(1). We affirm.

      The Footes were subject to auditing and deficiency proceedings from 1996

to 2011. The five actions against them were ultimately resolved through

stipulations entered by the tax court, none of which referenced administrative or

litigation costs. The Footes did not file a motion seeking an award of costs under

26 U.S.C. § 7430, nor did they move to vacate the decisions. See 26 C.F.R.

§ 301.7430-2(b)(2); Tax Court Rules 230-33.

      As the Footes did not properly petition the tax court for administrative and

litigation costs before the stipulated decisions became final, their current action for

costs is barred by res judicata. See Gustafson v. Comm’r, 97 T.C. 85, 93 (1991);

see also W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)

(listing the requirements for res judicata to apply). The Footes’ request to the

Internal Revenue Service for administrative costs is immaterial, because a

prevailing taxpayer may only recover costs from the IRS if “[t]he underlying

substantive issues . . . are not, and have never been, before any court of the United

                                           2
States.” § 301.7430-2(b)(1)(i). Here, the Footes’ liability was determined by the

tax court by way of stipulation. As such, any request for costs made to the IRS

was procedurally improper.

      AFFIRMED.




                                         3
