                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 05 2010

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




                            FOR THE NINTH CIRCUIT



NATHANIEL CALEB AVERY,                           No. 07-72506

               Petitioner - Appellant,           Tax Ct. No. 17315-05

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                          Submitted September 22, 2010 **

Before:        WALLACE, HAWKINS, and THOMAS, Circuit Judges.

       The tax court properly upheld the tax determination because the

Commissioner presented “some substantive evidence” that Nathaniel Caleb Avery

(“Avery”) received unreported income, and Avery failed to submit any evidence




          *
             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).
showing “that the deficiency was arbitrary or erroneous.” Hardy v. Comm’r, 181

F.3d 1002, 1004 (9th Cir. 1999).

      The tax court also properly upheld the late-filing addition to tax because

Avery did not file a tax return for 2002 or provide any evidence suggesting

reasonable cause for his failure to do so. See 26 U.S.C. § 6651(a)(1).

      The tax court acted within its discretion when imposed a $5,000 penalty,

after finding that Avery had instituted the proceedings primarily for delay and had

advanced frivolous arguments. See 26 U.S.C. § 6673(a) (providing for sanctions

up to $ 25,000 where “proceedings . . . have been instituted or maintained by the

taxpayer primarily for delay” or where “the taxpayer’s position in such proceeding

is frivolous or groundless”); Grimes v. Comm’r, 806 F.2d 1451, 1454 (9th Cir.

1986) (per curiam).

      Avery’s contention that the tax court judge was biased is not supported by

the record. See Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir.

1993) (adverse rulings alone are insufficient to demonstrate judicial bias).

      Avery’s remaining contentions are unpersuasive.

      AFFIRMED.




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