                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-1837
                                      ___________

                                   VON H. ARGYLE,
                                                        Appellant

                                            v.

                     COMMISSIONER OF INTERNAL REVENUE
                      ____________________________________

                      On Appeal from the United States Tax Court
                               (Tax Court No. 08-6820)
                     Tax Court Judge: Honorable Mary Ann Cohen
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 14, 2010
                 Before: SMITH, FISHER and GARTH, Circuit Judges

                            (Opinion filed: October 14, 2010)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Von Argyle, proceeding pro se, appeals a decision of the United States Tax Court

finding him liable for deficiencies and penalties in connection with his federal income tax

returns. For the reasons discussed below, we will affirm the judgment of the Tax Court.
       In March 2008, the Internal Revenue Service (“IRS”) issued Argyle, a certified

public accountant, a notice of deficiency for tax years 2004, 2005, and 2006. The IRS

asserted deficiencies of $7,478, $3,606, and $10,607, respectively, plus a penalty under

26 U.S.C. § 6662(a) for each year. Argyle filed a petition in Tax Court contesting the

notice of deficiency. Argyle and the IRS entered into a stipulation as to some of the

relevant facts and the case proceeded to a bench trial as to various tax issues. The Tax

Court issued a decision in September 2009, concluding that Argyle had not carried his

burden of proof as to the factual issues. Argyle filed a motion for reconsideration, which

was denied. The Tax Court issued a final decision incorporating the IRS’ post-trial

computation of deficiencies in the amounts of $2,180, $1,384 and $10,154 for the

respective tax years, plus penalties. This appeal followed.

       We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We exercise plenary review

over the Tax Court’s conclusions of law and review its factual findings for clear error.

PNC Bancorp, Inc. v. Comm’r of Internal Revenue, 212 F.3d 822, 827 (3d Cir. 2000).1

       Argyle contests the Tax Court’s decision that he was not entitled to single filing

status. The parties stipulated that Argyle is married, that his wife filed for divorce in

August 2004 but a divorce was not granted during the years 2004, 2005, and 2006, and




   1
    The Commissioner argues that we should dismiss Argyle’s appeal due to his filing of
an inadequate brief. Although Argyle relies on his Tax Court brief in arguing for reversal
of several of the Tax Court’s rulings, we decline to dismiss his appeal in light of his pro
se status.

                                              2
that Argyle and his wife lived separate and apart during these years. The Tax Court

explained that, subject to certain exceptions that did not apply, the relevant statute

provides that “an individual legally separated from his spouse under a decree of divorce

or of separate maintenance shall not be considered as married.” 26 U.S.C. § 7703(a)(2).

Because Argyle was neither divorced nor a party to a decree of separate maintenance, the

Tax Court concluded that he was not entitled to single filing status. The Tax Court

rejected Argyle’s contention that his “separate and apart” living status conferred single

filing status. We agree. The Tax Court did not err in ruling that Argyle was not entitled

to single filing status.

       Argyle also challenges the Tax Court’s ruling that he was not permitted to deduct

his legal expenses related to criminal proceedings for simple assault. The record reflects

that in 2004 Argyle provided accounting and tax preparation services for a client in

Pennsylvania. A woman who worked for the client filed a criminal complaint against

Argyle after he kissed her at his home and he pleaded no contest to a simple assault

charge. Argyle was represented by Paul Gettleman during the criminal proceedings. The

parties stipulated that Argyle paid Gettleman $12,500 during 2004, $25,000 in 2005, and

$25,000 in 2006. Argyle also paid $645 to Gettleman’s investigator. Argyle deducted

these fees as “legal and professional services” on his tax returns. Argyle also deducted an

additional $10,000 in legal fees that he claims he paid Gettleman in 2005.

       Argyle maintained that the woman filed her complaint because he had reprimanded



                                              3
her for misconduct in his client’s business and that his legal fees were thus deductible

under United States v. Gilmore, 372 U.S. 39, 49 (1963), which held that the test for

deductibility is the origin and character of the legal claim for which the expense was

incurred. The Tax Court concluded that Argyle failed to corroborate his claim that the

employee engaged in misconduct, noting that he did not call Gettleman to testify, and that

the preponderance of the evidence established that the legal fees arose out of a personal

relationship and were not deductible business expenses. The record supports these

conclusions. Argyle testified that he had met the woman for two meals, that she had used

his car, that he had kissed her at his home, and that she had kissed him.

       Argyle also challenges the Tax Court’s conclusion that he took other improper

business expense deductions. The record reflects that prior to September 1, 2004, Argyle

used residential property in Pennsylvania as his office. After September 1, 2004, he used

the same property as his residence. As noted by the Tax Court, Argyle conceded at trial

that part of his deduction for mortgage interest on the property had been recorded as an

itemized deduction on Schedule A and also as a business expense on Schedule C. The

Tax Court also found that Argyle did not properly allocate his expenses that related to the

use of his home as an office and as a residence. The Tax Court noted that the IRS

conceded a portion of the claimed home office expense and that Argyle did not show that

he was entitled to a greater amount. The Tax Court also concluded that Argyle did not

properly calculate his vehicle expenses or substantiate his travel and meal expenses.



                                             4
    Noting that Argyle testified that he did not know whether he reduced the cost of business

    meals by fifty percent as required by statute and that some of the amounts claimed were

    estimates, the Tax Court found his assertions as to deductibility unreliable. Argyle has

    not shown that the Tax Court erred as to any of these findings.2

           Finally, Argyle contends in his brief that his due process rights were violated based

    upon inadequate information provided by the IRS in its notice of deficiency. Argyle,

    however, was afforded a trial to contest the notice of deficiency. He has not shown a

    violation of his due process rights.

           Accordingly, we will affirm the judgment of the Tax Court.




1




       2
        Argyle states in his brief that the Tax Court should be reversed as to denied legal
    expenses, business expenses, and filing status. Appellant’s Br. at 4. We have thus not
    considered the Tax Court’s additional rulings regarding his early withdrawals from his
    individual retirement account or the penalties imposed pursuant to 26 U.S.C. § 6662(a).

                                                   5
