                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            MAY 12 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    JOYCE E. BEERY and JEROME G.
    BEERY,

                Petitioners-Appellants,
                                                         No. 04-9005
    v.                                                (T.C. No. 12113-01)
                                                          (Tax Court)
    COMMISSIONER OF INTERNAL
    REVENUE,

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellants Joyce and Jerome Beery petition this court for review of a

decision of the United States Tax Court sustaining the assessment of tax

deficiencies and penalties against them for the years of 1998 and 1999 by the

Commissioner of the Internal Revenue Service. Appellants raise five issues in

their two-page opening brief alleging tax court error. As will be shown in detail

below, the appellants’ allegations are premised on misrepresentation or

mischaracterization of the tax court record and misunderstanding of the legal

principles at issue. Consequently, we exercise our jurisdiction under 26 U.S.C.

§ 7482(a)(1) and affirm.

                                  BACKGROUND

      Mr. Beery filed a chapter 11 bankruptcy petition in the U.S. Bankruptcy

Court for the District of Kansas on January 16, 1976 (“Kansas Bankruptcy”).     1



The Kansas Bankruptcy was finally closed on December 2, 1993. On September

29, 1987, the trustee in the Kansas Bankruptcy filed Form 1041 income tax

returns (fiduciary income tax return forms) on behalf of the estate for the years

1976-1980 and 1982-1986. A review of these returns reveals that, on some, the




1
      The Kansas Bankruptcy was subsequently converted to a chapter 7
liquidation.

                                          -2-
trustee deducted net operating losses (NOLs) from the years 1975 and 1976 on

behalf of the estate.   2



       Appellants also attempted to deduct NOLs from 1975 on the joint personal

returns they filed for 1978-1999. The NOLS for 1978-1988 were apparently not

disputed, and it appears that the government failed to audit the appellants’ returns

for some, if not all, of those years. The government did, however, disallow the

NOL deductions claimed in the 1989-1991 tax returns. Appellants challenged this

decision. In 1994, while the case was pending before the tax court, Mr. Beery

filed another chapter 7 bankruptcy petition in the United States Bankruptcy Court

for the District of New Mexico (“New Mexico Bankruptcy”). In 1996, the tax

court in Beery I sustained the government’s determination disallowing the NOL

deductions claimed in the 1989-1991 tax returns. The tax court held that the NOL

from 1975 could not be carried forward to offset income for more than five years

after the loss arose.       Beery , 72 T.C.M. (CCH) at 1017-18.

       The government also disallowed the NOL deductions claimed by appellants

on the 1992-1994 tax returns and appellants again petitioned the tax court for



2
      “[D]uring 1975, [Mr. Beery] owned and managed in Colby, Kansas, two
businesses as sole proprietorships–a farm and a grain distributorship. Also during
1975, [Mr. Beery] owned an managed in Colby, Kansas, a branch of
Mayer-Gelbort-Leslie, Inc., a commodities trading firm based in Chicago, and
[Mr. Beery] made investments in commodities.”    Beery v. Comm’r , 72 T.C.M.
(CCH) 1013, 1014, 1996 WL 591939 (1996) (“     Beery I ”).

                                              -3-
review of that deficiency. On April 9, 1997, the tax court issued an order

partially granting the government’s motion for summary judgment in regard to the

1992-1994 tax returns, again finding that the appellants were not allowed to

deduct a NOL from 1975 on those returns (“         Beery II ”). As Mr. Beery explained

to the tax court in the matter at hand: “The judge [in      Beery II ] simply looked at

the first case [ Beery I ] and said he didn’t have to hear it on the merits since it was

the same issue, and issued an order.” R., Doc. 10 at 17. The court in          Beery II ,

therefore, ordered a decisional document to be submitted to reflect its partial

grant of summary judgment.

       On October 24, 1997, however, before the decisional document was

entered, the tax court dismissed Mr. Beery from        Beery II on the ground that the

petition he had filed violated the automatic stay arising from the New Mexico

Bankruptcy.   3
                  The same potential problem existed with     Beery I . On March 19,

1998, the court in the New Mexico Bankruptcy, however, entered an order

granting the government retroactive relief from the automatic stay to permit “the

United States Tax Court to take all steps necessary to enter a Decision in [         Beery

I] and conclude its case and to permit the IRS to assess [appellants’] additional

tax liabilities for the years 1989, 1990 and 1991.” R., Exs. 26-J and 27-J.




3
       The order remained applicable to Mrs. Beery, however.

                                             -4-
       No audits were performed on the appellants’ tax returns from the years

1995-1997, so the NOL deductions for those years were not disallowed. The

returns for 1998 and 1999 were audited, however, and the NOL deductions were

disallowed, resulting in the deficiencies and penalties at issue.

       The appellants filed their petition for review in the tax court arguing that

the NOL deductions were available in 1998 and 1999 because they were “entitled

to [an] NOL carryforward from [the Kansas Bankruptcy].” R., Doc. 1 at 1.

Appellants claimed that the trustee in the Kansas Bankruptcy did not deduct the

entire NOL from 1975, that they should have been allowed to carry forward that

loss for more than five years, and that the decision in        Beery I was entered in

violation of the automatic stay in the New Mexico Bankruptcy, despite the

retroactive relief from stay granted by the court in that bankruptcy. The tax court

found that the appellants’ NOL deductions on their 1998 and 1999 returns were

improper, that the issue had been settled in         Beery I , that the holding in Beery I

was not a violation of the stay, and that the only proof presented that the 1975

NOL had not been fully exhausted by 1998 was Mr. Beery’s self-serving

testimony. The tax court sustained the government’s determination as to the

deficiencies and penalties, and the appellants appealed.




                                               -5-
                                          ANALYSIS

       “[We] review the tax court’s decision ‘in the same manner and to the same

extent as decisions of the district courts . . . tried without a jury.’”       Estate of True

v. Comm’r , 390 F.3d 1210, 1217 (10th Cir. 2004) (quoting 26 U.S.C.

§ 7482(a)(1)). “Therefore, we review legal questions de novo and factual

questions for clear error.”     Id.

       The appellants’ first issue on appeal reads:

       The Court apparently overlooked or ignored the disputed stipulations
       and incorporated them in the opinion as findings of fact. The
       respondent offered no evidence at trial regarding the disputed
       stipulations. They were therefore incorrectly taken as findings of
       fact.

Aplt. Opening Br. at 1. On April 8, 2003, the parties filed a Stipulation of Facts

with the tax court setting forth a number of uncontested facts and submitting a

number of exhibits but, in certain sections, pointing out that the parties disagreed

about the conclusions to be drawn from those facts and exhibits.           4
                                                                               For example, of

the six “disputed” stipulations relevant to this appeal, the first three submitted

copies of past income tax returns and referenced the amounts of the NOLs

deducted on those returns.       Id. at 2-3, paras. 5-7 (submitting Exs. 4-J through

22-J). These stipulations also reflected that appellants disputed the amounts set



4
      Although Mr. Beery refers to these as “disputed” stipulations, he does not
argue that the actual content of the stipulations is incorrect.

                                               -6-
forth in the returns.      Id. The fourth “disputed” stipulation recognized the

existence of the ruling in     Beery I , but stated that the appellants disputed the

validity of that ruling.     Id. at 4, para. 10. The fifth “disputed” stipulation agreed

that an order for retroactive relief had been entered allowing        Beery I to stand, but

recognized that the appellants disputed the validity of that order.       Id. at 4-5,

para. 11 (submitting Exs. 26-J through 28-J). The final “disputed” stipulation

involved Beery II and reflected that the appellants contended that the decision in

Beery II was invalid. Id. at 5, para. 13.

       Appellants’ first point is meritless. In the tax court’s Memorandum

Findings of Fact and Opinion, the court stated “[s]ome of the facts have been

stipulated and are so found. The stipulation of facts is incorporated herein by this

reference.” R. Doc. 13 at 2. Appellants’ interpretation of these statements as

evidence the trial court “overlooked” or “ignored” appellants’ disagreements with

the documentary evidence outright, Aplt. Opening Br. at 1, is inconsistent both

with the tax court’s findings and with the proceedings at trial. When the

stipulation was presented to the tax court, the government directed the court’s

attention to the fact that appellants disputed the amounts set forth in some of the

admitted documents. R., Doc. 10 at 4. The court responded, “I noticed that when

I went through it,” then turned to Mr. Beery and stated: “Mr. Beery, is that

correct? No reserved objections [to the stipulation or documents], however you


                                              -7-
do dispute the accuracy of certain of the information contained in the documents,

is that right?”   Id. Mr. Beery responded: “That’s correct, Your Honor.”         Id. The

court then entered the exhibits into evidence and filed the stipulation in the

record. Id. at 5.

       The tax court, therefore, had before it documentary evidence, the existence

of which was undisputed by the parties. Also undisputed was the fact that the

appellants questioned the correctness or validity of some of that evidence. The

fact that the tax court made findings consistent with the content of the

documentary evidence does not mean that appellants’ argument against such

content was “overlooked or ignored,” Aplt. Opening Br. at 1; it simply means that

appellants’ argument was not persuasive.

       Appellants’ second point on appeal reads: “[Mr.] Beery’s testimony was

offered under oath and not disputed by the respondent, therefore the court has no

option, it must accept it as factual.”   Id. This case turned mostly on the holding

in Beery I that a NOL could not be carried forward for more than five years. The

New Mexico Bankruptcy court granted retroactive relief from the automatic stay

to allow the decision in   Berry I . The fact that Mr. Beery testified that he

disagreed with Beery I and with the granting of retroactive relief from the stay

does not mean that his testimony on these points was “not disputed” or that the

tax court was required to believe his testimony over the documentary evidence.


                                            -8-
      Appellants’ third point on appeal reads:

      On page 8 of the opinion the Court states “[Appellants] do not
      contend that Section 7491(a) applies to this case.” The Court must
      apply the burden of proof whether or not the [Appellants] bring up
      the issue. It is, after all, the law. Without the disputed stipulations
      being included as findings of fact the respondent has failed to meet
      the burden of proof standard. Beery’s testimony establishes that the
      NOL deductions are legitimate.

Aplt. Opening Br. at 1-2. In its ruling, the tax court recognized that a taxpayer

has the burden of proving entitlement to a deduction but also stated:

      [w]here the taxpayer produces credible evidence with respect to any
      factual issue relevant to ascertaining the tax liability of the taxpayer,
      [under § 7491(a)] the burden of proof shifts to the Secretary, but only
      if the taxpayer has complied with substantiation requirements,
      maintained all required records, and has cooperated with reasonable
      requests by the Secretary for witnesses, information, documents,
      meetings, and interviews. Sec. 7491(a). Petitioners do not contend
      that sec. 7491(a) applies to this case.

R., Doc. 13 at 8 n.7. Again, we disagree with the appellants’ interpretation of the

tax court’s ruling. The ruling does not imply that the burden   would have been

shifted to the government   if appellants had made such an argument. The tax court

simply recognized that in some cases the burden may shift to the government,

implicitly found that the appellants in this case did not produce enough evidence

to shift the burden, and noted that the appellants had not even argued that enough

evidence had been presented to do so. The tax court’s comment on appellants’

failure to argue the issue was inconsequential.



                                           -9-
       The appellants’ fourth point on appeal reads:

       On page 15 of the opinion is the statement by the Court that “The
       record does not contain one iota of credible evidence that
       []petitioners had a reasonable basis for claiming the disputed NOL
       carryforward deductions or that they acted in good faith by doing
       so.” To the contrary, Beery testified that the IRS, after questioning
       the deduction for previous years, had allowed the NOL deduction.
       That was the only evidence presented to the court regarding whether
       the petitioners had a reasonable basis for using the NOL. The
       respondent presented no evidence of any kind that the IRS has not
       allowed the deduction for previous years. In the case of accuracy-
       related penalties the IRS has the burden of proof and they failed to
       meet that burden.

Aplt. Opening Br. at 2.   5
                              Once again, appellants misstate the record. It is clear

that there were years when the government did not question the appellants’ NOL

deductions. The evidence before the tax court, however, showed that         Beery I

disallowed appellants’ attempts to deduct NOLs from 1975 on their 1989, 1990

and 1991 returns. While the appellants dispute the validity of this decision, they

do not dispute its existence. Similarly, evidence regarding the ruling in     Beery II

that the deductions would not be allowed was also before the court. Again,

although the appellants contest the validity of this decision, they do not contest

the existence of the order. Although Mr. Beery was dismissed from the case after

the government’s motion for summary judgment was granted, the judgment


5
       U.S.C. § 6664(c)(1) provides that the accuracy-related penalties at issue in
the case at hand shall not be imposed “to any portion of an underpayment if it is
shown that there was a reasonable cause for such portion and that the taxpayer
acted in good faith with respect to such portion.”

                                            -10-
remained applicable to Mrs. Beery and Mr. Beery must have been aware of the

ruling.

       It is clear, therefore, that at the time they filed the contested income tax

returns the appellants were aware that the claimed deductions had been

disallowed on previous returns because of the five-year cut-off. The tax court

evidently found Mr. Beery’s testimony that the government had previously

accepted NOL deductions, that the appellants therefore had a reasonable basis for

claiming the disputed NOL carryforward deductions, and that they acted in good

faith by doing so, not to be credible, stating “[appellants’] entire course of

conduct reflects a determined effort to claim undocumented and/or unuseable

NOL carryforwards from 1975 over a period of many years while ignoring

applicable law and relevant facts.” R., Doc. 13 at 15. Credibility

determinations, like other findings of fact, are the province of the tax court unless

clearly erroneous.   Estate of True v. Comm’r,   390 F.3d 1210, 1217 (10th Cir.

2004); Merchs. Nat’l Bank of Topeka v. Comm’r      , 554 F.2d 412, 416 (10th Cir.

1977) ( “[T]he credibility to be given a witness is a matter for the tax court.”).

       Appellants’ fifth and final point on appeal reads:

       The petitioners were not allowed to present any legal arguments at
       trial, see transcript at page 37, line 20. This in spite of the fact that
       the respondent made numerous legal arguments, including at least
       one citation, throughout the trial. Transcript, page 10, line 14.
       Further the petitioner deferred an opening statement until the
       conclusion and was not allowed to give that statement.

                                          -11-
Aplt. Opening Br. at 2. Appellants’ fifth point appears to be an attempt to raise a

due process argument. Once again, the appellants’ factual description fails to

accurately represent the reality of the tax court proceedings. A review of the

transcript reveals that at the beginning of the hearing the court noted, and

Mr. Beery confirmed, that Mr. Beery had not filed a trial memorandum in the

case. R., Doc. 10 at 5. Mr. Beery asked the court to allow him to defer his

opening statement until the close of the case, to which the court responded:

      That’s fine. Wait, except, Mr. Beery, don’t assume you’re going to
      have an opportunity to say anything at the end of the case. We’ll talk
      about what transpires at the end of the case, whether there are filing
      briefs or closing argument of some kind . . . .

       ....

      I will, however, permit you to make an opening statement–if you
      wish to do so, you don’t have to–after Respondent makes his opening
      statement.

Id. at 5-6. Mr. Beery responded: “Thank you, Your Honor, I understand.”        Id. at

6. Following the respondent’s opening statement, the judge asked “Mr. Beery, do

you wish to make any statement?”    Id. at 13. Mr. Beery said that he did, was

sworn in as a witness, and proceeded to present his argument. Contrary to his

allegations, Mr. Beery did present legal arguments during the hearing. When he

attempted to quote case law supporting these arguments, however, the tax court

judge told him that “[t]he purpose of this proceeding right now is to take any



                                         -12-
factual testimony . . . that you wish to give.” R., Doc. 10 at 17.     6
                                                                           Later in the

proceeding, Mr. Beery again asked to quote case law to support his legal

argument that Beery I was invalid on the basis that “instead of asking for the stay

to be annulled, [the government] asked for it to be lifted.”         Id. at 22. The court

refused his request, stating “I’ll give you an opportunity to make a post-trial

filing.” Id. Mr. Beery subsequently asked: “At what point am I allowed to make

legal arguments, Your Honor?” to which the court replied, “I’m going to talk with

you about that once the evidence is completed in this case.”          Id. at 23. At the end

of the presentation of evidence, the court closed the evidentiary record and then,

after a lengthy discussion, gave the parties ninety days to file simultaneous post-

trial opening briefs, with forty-five days allowed thereafter for reply briefs, a

schedule to which Mr. Beery did not object. The tax court was extremely clear

with Mr. Beery as to what it was requesting:

       What I’m interested in hearing from you is–I want, whatever you file,
       I want proposed findings of fact that are predicated on the factual
       record in this case, which is very slim. And which tells me basically
       what you would have me find as facts in this case, with a–at least
       some indication of where I would find support for it in the record.

       And then a statement of your legal position, making whatever
       argument you wish to make. You know what Respondent’s
       arguments are because they were laid out in the trial memoranda.


6
      The judge spent a large part of the hearing attempting to determine if
Mr. Beery had any evidence, other than his own testimony, that a NOL from 1975
existed.

                                             -13-
      And your task, as far as I’m concerned, is to give me a coherent,
      intelligible explanation of why you think Respondent’s position is
      wrong.

Id. at 36-37. After giving these instructions, the tax court began to stand in recess

but was interrupted by Mr. Beery, again inquiring about when he would have the

opportunity to discuss case law.   Id. at 37. The tax court patiently explained that

Mr. Beery could discuss case law in his post-trial briefs, stating:

      [L]et me just explain. I’m more than happy to talk to the parties in
      many cases, but because we do have a post-trial filing process that
      permits parties to give their legal arguments in writing, it generally
      makes for a more coherent presentation of the argument than simply
      standing up and citing cases.

      So, I really don’t feel a need for oral argument, given the fact that I
      am permitting you to file post-trial arguments in writing.

Id. at 38. Appellants failed to file an opening post-trial brief, nor did they file a

response to the opening post-trial brief filed by the government.

      Appellants, therefore, have no room to complain on appeal. Mr. Beery was

told that he could only defer his opening statement until after respondent gave his

statement. This is what occurred. Further, appellants squandered their

opportunity to present legal argument to the court when they failed to file either a

trial memorandum or, after the tax court went out of its way to explain the

briefing process in detail, the ordered post-trial briefs.




                                          -14-
      Consequently, the appellants’ petition for review of the December 4, 2003,

decision of the tax court is DENIED. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




                                       -15-
