                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 04 2011

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




                            FOR THE NINTH CIRCUIT



JOSEPH R. BANISTER,                              No. 09-70775

               Petitioner - Appellant,           Tax Ct. No. 1356-06

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                           Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Joseph R. Banister appeals pro se from the tax court’s decision upholding

the Commissioner of Internal Revenue’s determination of a deficiency and an

addition to tax in connection with unreported income for tax year 2002. We have

jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo the tax court’s legal

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conclusions, and for clear error its findings of fact. Hardy v. Comm’r, 181 F.3d

1002, 1004 (9th Cir. 1999). We affirm.

      The tax court properly upheld the tax determination because the

Commissioner presented the “minimal factual foundation” necessary to link

Banister to the receipt of unreported income, Palmer v. IRS, 116 F.3d 1309, 1312

(9th Cir. 1997), and Banister failed to submit any evidence “showing that the

deficiency was arbitrary or erroneous,” Hardy, 181 F.3d at 1005.

      The tax court properly upheld the late-filing addition to tax because Banister

did not file a tax return for 2002 or provide any evidence suggesting reasonable

cause for his failure to do so. See 26 U.S.C. § 6651(a)(1).

      Banister’s remaining contentions are unpersuasive.

      AFFIRMED.




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