                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              FEB 18 2015

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

RALPH E. HOLMES,                                No. 13-71034

              Petitioner - Appellant,           Tax Ct. No. 3769-10

  v.
                                                MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,

              Respondent - Appellee.


                           Appeal from a Decision of the
                                    Tax Court

                          Submitted February 13, 2015**
                              Pasadena California

Before: CHRISTEN and HURWITZ, Circuit Judges, and BURGESS, District
Judge.***




        *
             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).
       ***
             The Honorable Timothy M. Burgess, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
      Ralph E. Holmes appeals from a Tax Court decision assessing deficiencies and

penalties in connection with his returns for the years 2000 through 2004. Holmes

challenges the Tax Court’s finding that he was not entitled to defer recognition of

gains pursuant to 26 U.S.C. § 1045. We have jurisdiction under 26 U.S.C. § 7482,

and affirm.

      1. We review the factual findings of the Tax Court for clear error. Boyd

Gaming Corp. v. CIR, 177 F.3d 1096, 1098 (9th Cir. 1999).

      2. The Tax Court did not clearly err in finding Holmes had failed to establish

that he acquired the shares of LeonardoMD, Inc. at original issue. Holmes’s

testimony on this point was contradictory, and at one point he said that he acquired

the shares from company officers. See 26 U.S.C. §§ 1045(b)(1), 1202(c)(1)(B); Ruark

v. CIR, 449 F.2d 311, 313 (9th Cir. 1971) (per curiam).

      3. Nor did the Tax Court clearly err in finding Holmes’s conclusory and

uncorroborated testimony insufficient to establish that at least 80% of LeonardoMD

assets were used in the active conduct of qualified trades or businesses. See 26 U.S.C.

§§ 1045(b)(1), 1202(c)(2)(A), (e)(1)(A); Geiger v. CIR, 440 F.2d 688, 689-90 (9th

Cir. 1971) (per curiam).1

1
      Because we affirm on these bases, we need not address Holmes’s challenge to
the Tax Court’s finding that he failed to establish LeonardoMD did not have more
than $50 million in gross assets. See 26 U.S.C. §§ 1045(b)(1), 1202(d)(1).

                                          2
AFFIRMED.




            3
