                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 23 2015

                                                                           MOLLY C. DWYER, CLERK
CATHERINE MARIE NUNEZ,                           No. 13-70923               U.S. COURT OF APPEALS



              Petitioner - Appellant,            Tax Ct. No. 15168-10

  v.
                                                 MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,

              Respondent - Appellee.


                        Appeal from the Decision and Order
                          of the United States Tax Court

                      Argued and Submitted March 12, 2015
                           San Francisco, California

Before: BERZON, BYBEE, and OWENS, Circuit Judges.

       Petitioner-Appellant Catherine Marie Nunez appeals the Tax Court’s denial

of her motion to vacate the Tax Court’s determination, after a trial de novo, that

she was not entitled to innocent-spouse relief under 26 U.S.C. § 6015(f). Nunez

argues here, as she argued in her motion to vacate below, that the Tax Court lost

jurisdiction over her petition once the Commissioner changed his position before


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
trial and decided that he would not oppose a determination in Nunez’s favor.

Having jurisdiction under 26 U.S.C. § 7482(a)(1), we affirm.

      There is no dispute that Nunez properly invoked the Tax Court’s jurisdiction

when she filed her petition within 90 days of the date the Commissioner issued a

notice of final determination denying Nunez’s request for § 6015(f) relief. See id.

§ 6015(e)(1)(A) (providing that “the Tax Court shall have jurisdiction[] to

determine the appropriate relief available to the individual under [§ 6015] if [the

requesting spouse’s] petition is filed” within 90 days of “the date the Secretary

mails . . . notice of the Secretary’s final determination of relief”). Thus, the Tax

Court presumptively continued to have jurisdiction throughout the proceedings

before it. See Charlotte’s Office Boutique, Inc. v. Comm’r, 425 F.3d 1203, 1208

(9th Cir. 2005) (“[A]s a general matter a federal court’s subject-matter jurisdiction

is determined at the time it is invoked.”).

      Nothing in § 6015 provides that the Tax Court loses jurisdiction once the

Commissioner changes his position and supports, or stops opposing, a grant of

relief in the requesting or electing spouse’s favor. Section 6015 does state that the

Tax Court loses jurisdiction when either spouse files a refund suit in district court

or the United States Court of Federal Claims, see 26 U.S.C. § 6015(e)(3)(A), but




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neither Nunez nor her former husband filed a refund suit during the Tax Court

proceedings.

      Nunez contends that the Commissioner’s change in position deprived the

Tax Court of any live controversy to decide. Although we have recognized that

limitations imposed on Article III courts are presumptively applied to the Tax

Court, Charlotte’s Office Boutique, 425 F.3d at 1211 & n.7, “we must also bear in

mind that the Tax Court is not an Article III court and, therefore, is not fully

constrained by Article III’s case or controversy limitation,” Baranowicz v.

Comm’r, 432 F.3d 972, 975 (9th Cir. 2005).

      But even if the Tax Court were fully bound by Article III constraints, the

Commissioner’s communication of his position that “petitioner is entitled to

equitable relief under I.R.C. § 6015(f)” did not moot the case, as the Commissioner

did not grant the requested relief. A respondent’s failure to defend its decision on

appeal, without some action that moots or vacates the decision, does not ordinarily

deprive an appellate court of a live case or controversy. And here, because the

Commissioner never revoked, or promised to revoke, the notice of final

determination denying Nunez’s request for § 6015(f) relief, Nunez continued to




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experience an injury that the Tax Court would have been able to redress, even

though the Tax Court ultimately did deny her petition.1

      We therefore conclude that the Tax Court did not err in denying Nunez’s

motion to vacate.

      AFFIRMED.




      1
        Although it is unclear whether the Commissioner could have rescinded the
agency’s notice of final determination while the Tax Court petition was pending,
he might have stipulated to a decision in Nunez’s favor and filed a motion for entry
of decision with the Tax Court. The Commissioner declined to take such actions
here because he saw himself bound by the Tax Court’s decision in Corson v.
Commissioner, 114 T.C. 354, 364–65 (2000), which departed from the Tax Court’s
prior practice of granting such motions. See, e.g., Garvey v. Comm’r, 66 T.C.M.
(CCH) 355, 358 (1993). But Corson did not purport to preclude the Commissioner
from seeking entry of decision in future cases, notwithstanding a nonelecting or
nonrequesting spouse’s intervention. See Corson, 114 T.C. at 365 (noting that “we
do not have before us a case for determining the precise contours of the rights
granted to a nonelecting spouse under section 6015(e)” and explaining that the Tax
Court would decline to grant motions for entry of decision over the objection of a
nonelecting spouse “until such rights are more explicitly defined in appropriate
cases” (emphasis added)). Cf. Baranowicz, 432 F.3d at 975–76.

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