                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 25 2012

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




                            FOR THE NINTH CIRCUIT



FRANKLIN M. SYKES; ERLINDA L.                    No. 10-72394
SYKES,
                                                 Tax Ct. No. 7275-08
               Petitioners - Appellants,

  v.                                             MEMORANDUM *

COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Franklin M. Sykes and Erlinda L. Sykes appeal pro se from the Tax Court’s

decision, after a bench trial, upholding the Commissioner of Internal Revenue’s

determination of an income tax deficiency and a penalty for tax year 2004. We


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

Court’s legal conclusions and for clear error its factual determinations. Kelley v.

Comm’r, 45 F.3d 348, 350 (9th Cir. 1995). We affirm.

      The Tax Court did not clearly err in determining that the Sykeses were not

entitled to their claimed casualty deduction. See Sparkman v. Comm’r, 509 F.3d

1149, 1159 (9th Cir. 2007) (taxpayer bears burden of clearly showing right to

claimed deduction, and Tax Court’s factual determination that taxpayer has failed

sufficiently to substantiate deduction must be upheld unless clearly erroneous); 26

C.F.R. § 1.165-7(a)(2)(i) (explaining that “the fair market value of the property

immediately before and immediately after the casualty shall generally be

ascertained by competent appraisal”).

      We do not consider whether the Tax Court erred by sustaining the accuracy-

related penalty imposed under 26 U.S.C. § 6662 because the issue was not argued

in the opening brief. See Friends of Yosemite Valley v. Kempthorne, 520 F.3d

1024, 1033 (9th Cir. 2008) (deeming waived issues not raised in the opening brief).

      The Sykeses’ remaining contentions, including those concerning the Romero

appraisal report, are unpersuasive.

      AFFIRMED.




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