                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

 GUILLERMO MOJARRO,                              No. 15-72153

                  Petitioner-Appellant,          Tax Ct. No. 1492-14

   v.
                                                 MEMORANDUM*
 COMMISSIONER OF INTERNAL
 REVENUE,

                  Respondent-Appellee.

                           Appeal from a Decision of the
                             United States Tax Court

                            Submitted April 11, 2017**

Before:       GOULD, CLIFTON, and HURWITZ, Circuit Judges.

        Guillermo Mojarro appeals pro se from the Tax Court’s judgment following

a bench trial concluding that a $250,000 payment that Mojarro received under a

settlement agreement was not excludable from his gross income and assessing

penalties. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo



        *
             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).
the Tax Court’s legal conclusions, and for clear error its factual findings. DJB

Holding Corp. v. Comm’r, 803 F.3d 1014, 1022 (9th Cir. 2015). We affirm.

      The Tax Court properly concluded that, with the exception of $1,500 paid

for medical treatment for Mojarro’s emotional distress, Mojarro’s $250,000

settlement was not made on account of “physical injuries or physical sickness” and

was therefore not excludable from Mojarro’s gross income. 26 U.S.C. § 104(a)(2)

(exempting settlement payment based on physical injuries or physical sickness

from taxation, but not treating emotional distress as a physical injury or physical

sickness); Rivera v. Baker W., Inc., 430 F.3d 1253, 1256-57 (9th Cir. 2005) (setting

forth framework for determining when settlement proceeds qualify for a

§ 104(a)(2) exclusion and explaining that there must be a “direct causal link”

between damages and personal injuries).

      The Tax Court did not clearly err in concluding that Mojarro failed to

produce sufficient evidence that he acted with reasonable cause and in good faith,

and thus properly concluded that Mojarro was ineligible for the exception under

§ 6664(c)(1) for his substantial underpayment of income tax. See 26 U.S.C.

§ 6662(a), (b)(2) (authorizing penalty for any substantial understatement of income

tax); id. § 6662(d)(1)(A) (defining substantial understatement); DJB Holding

Corp., 803 F.3d at 1022, 1028-31 (setting forth standards of review and discussing

penalties under § 6662 based on substantial underpayment and circumstances for


                                          2                                    15-72153
applying exception under § 6664(c)(1) regarding whether taxpayer had reasonable

cause for his position and acted in good faith).

      The Tax Court did not abuse its discretion in denying Mojarro’s motion for

reconsideration because Mojarro did not establish grounds for relief. See

Parkinson v. Comm’r, 647 F.2d 875, 876 (9th Cir. 1981) (standard of review).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




                                          3                                 15-72153
