                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 24 2013

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




                            FOR THE NINTH CIRCUIT



BRADLEY K. MORRISON,                             No. 11-71691

              Petitioner - Appellant,            Tax Ct. No. 18140-03

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

              Respondent - Appellee.



              Appeal from a Decision of the United States Tax Court


                           Submitted August 23, 2012 **
                             San Francisco, California

Before: HUG, PAEZ, and BERZON, Circuit Judges.

       Petitioner-Appellant Bradley K. Morrison appeals from the Tax Court’s

denial of his motion for litigation costs under 26 U.S.C. § 7430. We affirm the



        *
             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).
Tax Court.

      On appeal, Morrison does not argue, as he did in the Tax Court, that the joint

attorney engagement letter establishes an absolute obligation to repay Caspian for

the amounts Caspian paid to counsel on Morrison’s behalf. Nor does he argue, as

he did in the Tax Court, that he and Nariman Teymourian orally agreed as part of

the stock buyout agreement that if Morrison ultimately recovered fees, Morrison

would repay Caspian. We therefore do not address those abandoned arguments.

See, e.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

      Although Morrison’s argument on appeal is not perfectly clear, he seems to

argue that Caspian’s payment of Morrison’s litigation costs, combined with

Teymourian’s own understanding that Morrison would reimburse Caspian for any

costs recovered from the IRS, constituted an implied in fact contract obligating

Morrison to reimburse Caspian. Morrison never presented this precise argument in

the Tax Court and has provided no justification for his failure to do so. We

therefore deem this late-raised argument waived. See Monetary II Ltd. P’ship. v.

CIR, 47 F.3d 342, 347 (9th Cir. 1995); Melvin v. CIR, 894 F.2d 1072, 1076 (9th

Cir. 1990) (per curiam).

      We would reject Morrison’s argument on the merits even if we were to

consider it properly presented. An implied in fact agreement only exists where


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there is a “‘meeting of minds’” that can be “‘inferred, as a fact, from conduct of the

parties showing, in the light of the surrounding circumstances, their tacit

understanding.’” Hercules, Inc. v. United States, 516 U.S. 417, 424 (1996)

(quoting Baltimore & O.R. Co. v. United States, 261 U.S. 592, 597 (1923)).

Morrison points to no evidence in the record that establishes any mutual

understanding between Morrison and Teymourian that Morrison would repay

Caspian. As the Tax Court found, Teymourian “simply assumed that Caspian

would be entitled to a recovery of attorney’s fees because Caspian paid them . . . .

Teymourian’s assumption [was not] an obligation assumed by [Morrison].” There

is simply no evidence from which to infer that Morrison shared in Teymourian’s

understanding that Morrison would be obligated to repay Caspian should he

recover fees.

      Because Morrison has not raised any other arguments on appeal, we need

not and do not decide whether Morrison, as “a prevailing taxpayer who did not

himself pay fees and is not liable for repayment of fees to a third party,”

nonetheless “incurred” fees under 26 U.S.C. § 7430 in some other sense. See

Morrison v. CIR, 565 F.3d 658, 666 n.7 (9th Cir. 2009).

      AFFIRMED.




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