                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 12 2012

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




                            FOR THE NINTH CIRCUIT



SIVATHARAN NATKUNANATHAN,                        No. 10-72151

               Petitioner - Appellant,           Tax Ct. No. 17291-07

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Sivatharan Natkunanathan appeals 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 late-filing addition to tax for tax




          *
             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).
year 2003. We 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 properly determined that Natkunanathan failed to establish

his entitlement to a partial exclusion of the gains he received from selling Intel

Corporation stock. See 26 U.S.C. § 1202(a)(1) (permitting exclusion of 50% of

gains from sale of qualified small business stock, provided that taxpayer held the

stock for more than five years).

      The Tax Court did not clearly err in determining that Natkunanathan was not

entitled to claimed deductions for payments for software development that he

never received. See Sparkman v. Comm’r, 509 F.3d 1149, 1159 (9th Cir. 2007)

(taxpayer bears burden of showing right to claimed deduction, and Tax Court’s

factual determination that taxpayer has failed to produce sufficient evidence to

substantiate deduction must be upheld unless it constitutes clear error); United

States v. Pacheco, 912 F.2d 297, 304 (9th Cir. 1990) (taxpayer cannot deduct bad

debt under 26 U.S.C. § 166 if it arises from unpaid wages, fees, and similar items

of taxable income not reported as income on a return); Marks v. Comm’r, 390 F.2d

598, 599 (9th Cir. 1968) (deductible business losses under 26 U.S.C.§ 165 require

loss of existing capital and do not include the failure to realize anticipated income).


                                           2                                    10-72151
      The Tax Court did not clearly err in determining that Natkunanathan failed

to produce sufficient evidence to demonstrate his entitlement to claimed business

deductions for meals and entertainment, advertising, and home office expenses.

See 26 U.S.C. § 162(a) (permitting deduction of certain “ordinary and necessary”

business expenses); id. at § 274(d) (setting forth substantiation requirements for

claimed deductions for entertainment expenses); id. at § 280A(c)(1) (setting forth

limited business use exceptions to general prohibition on deductions with respect

to taxpayer’s residence); Sparkman, 509 F.3d at 1159; Meridian Wood Prods. Co.

v. United States, 725 F.2d 1183, 1188 (9th Cir. 1984) (absent substantiation of

date, place, amount, business purpose, and business relationship, entertainment

expense deductions are disallowed).

      Natkunanathan’s remaining contentions are unpersuasive.

      Natkunanathan’s “ex parte application for order sealing for privacy

protection,” filed on July 8, 2011, is denied.

      AFFIRMED.




                                           3                                   10-72151
