                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 23 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-35404

              Petitioner - Appellee,             D.C. No. 3:09-mc-05016-RBL

  v.
                                                 MEMORANDUM*
ANDRE D. JONES,

              Respondent - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                            Submitted April 12, 2012**
                               Seattle, Washington

Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.



       Appellant Andre Jones appeals the district court’s denial of his motion for

attorney’s fees after the Internal Revenue Service (“IRS”) withdrew a petition to


        *
             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).
enforce its summons. Because we agree that the position of the IRS was

substantially justified, we affirm.

      The IRS questioned Jones’ 2006 and 2007 tax returns. In response to an IRS

request, he sent in canceled checks to substantiate his returns. Comparing the

checks with copies received from the bank, the IRS determined that Jones had

fabricated several of the checks. When Jones failed to produce other documents

the IRS requested and failed to appear for an interview, the IRS issued a summons.

After Jones failed to respond to the summons and to a subsequent “last chance

letter,” the IRS filed a petition to enforce its summons in the district court. Jones

did not respond to the petition, which the district court granted.

      Jones then filed a motion to reconsider. Meanwhile, the IRS had pursued

other avenues to obtain answers to its questions regarding Jones’ income tax

liabilities, and it moved to withdraw the petition to enforce the summons. After the

IRS withdrew its petition, Jones filed a motion for attorney’s fees under 26 U.S.C.

§ 7430, claiming he was a prevailing party in the petition. The district court denied

the motion, concluding that although Jones was the prevailing party, the United

States’ position was substantially justified. Jones appealed.

      We review a district court’s denial of attorney’s fees under 26 U.S.C. § 7430

for an abuse of discretion. Pac. Fisheries, Inc. v. United States, 484 F.3d 1103,


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1106 n.2 (9th Cir. 2007). A trial court abuses its discretion if its “application of the

correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support

in inferences that may be drawn from the facts in the record.’” United States v.

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (quoting Anderson v. City

of Bessemer City, N.C., 470 U.S. 564, 577 (1985)).

      Jones argues that the district court abused its discretion because it based its

decision on the declaration of Agent Sorensen, who Jones claims lacked personal

knowledge adequate to support the declaration. However, Sorensen declared that

he had personal knowledge of all facts in the declaration and that he gained that

knowledge by investigating the case jointly with Agent Tjoa. The United States

also filed a declaration by Agent Tjoa in support of its petition to enforce the

summons, which Jones does not challenge. Jones has not demonstrated that Agent

Sorensen lacked sufficient personal knowledge to support his declaration. The

district court did not abuse its discretion by considering the Sorensen declaration

along with Agent Tjoa’s declaration to deny Jones’ request for attorney’s fees.

      Jones also argues that the summons was issued for the improper purpose of

forcing him to testify in violation of his rights under the Fifth Amendment.

However, Jones was required to appear in response to the valid summons and was

required to assert his rights under the Fifth Amendment on a question by question


                                          -3-
basis. United States v. Drollinger, 80 F.3d 389, 392 (9th Cir. 1996) (per curiam).

The district court did not abuse its discretion in finding the United States’ position

was substantially justified.

      AFFIRMED.




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