                                                                            FILED
                                                                             MAR 08 2011
                             NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

                     UNITED STATES COURT OF APPEALS

                              FOR THE NINTH CIRCUIT



CARLOS W. SMITH,                                  No. 09-71966

               Petitioner,                        Tax Ct. Nos. 10907-08
                                                               21318-08
  v.

COMMISSIONER OF INTERNAL                          MEMORANDUM *
REVENUE,

               Respondent.



                             Appeal from a Decision of the
                               United States Tax Court

                             Submitted February 15, 2011 **

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

       Carlos W. Smith appeals pro se from the tax court’s order following a bench

trial upholding the Commissioner of Internal Revenue’s deficiencies and penalties

for tax years 2005 and 2006. We have jurisdiction under 26 U.S.C. § 7482(a)(1).


          *
             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).
We review de novo the tax court’s legal conclusions, and for clear error its factual

findings. Johanson v. Comm’r, 541 F.3d 973, 976 (9th Cir. 2008). We affirm.

      The tax court properly upheld Smith’s tax deficiencies because he did not

substantiate his claimed deductions with any evidence despite being given

numerous opportunities to do so. See Norgaard v. Comm’r, 939 F.2d 874, 877 (9th

Cir. 1991) (the taxpayer carries the burden of establishing entitlement to a

deduction).

      The tax court properly upheld Smith’s penalties because he failed to meet

his burden of showing that the underpayment was not a result of negligence. See

26 U.S.C. § 6662(a); Pahl v. Comm’r, 150 F.3d 1124, 1131 (9th Cir. 1998).

      Smith’s contentions that he was retaliated against are unavailing. See Karme

v. Comm’r, 673 F.2d 1062, 1064 (9th Cir. 1982) (courts will look behind the

deficiency notice to determine the Commissioner’s motives only in extremely rare

cases involving unconstitutional conduct).

      Smith’s remaining contentions are unpersuasive.

      AFFIRMED.




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