Ronald Fish v. Cir , 699 F. App'x 655 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD CRAIG FISH, No. 15-73389
Petitioner-Appellant, Tax Ct. No. 10691-13
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted October 17, 2017**
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and MCSHANE,*** District
Judge.
Ronald Craig Fish deducted losses sustained in his individual retirement
account (“IRA”) on his 2009 tax return. The IRS disallowed the deduction,
*
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).
***
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
determined a deficiency, and imposed an accuracy-related penalty under I.R.C.
§ 6662. The Tax Court sustained the deficiency and the penalty. We have
jurisdiction over Fish’s appeal of the Tax Court judgment under I.R.C. § 7482(a)(1)
and affirm.
The only issue on appeal is whether Fish may deduct unrelated business
taxable income (“UBTI”) losses sustained by two partnerships held in an IRA from
his personal taxable income.1 Although IRAs are generally tax-exempt, they are
“subject to the taxes imposed by section 511” on UBTI of organizations in which
they invest. I.R.C. § 408(e)(1); see I.R.C. § 511. The Tax Code provides that UBTI
losses may be carried forward or backward to deduct against gains within an IRA.
See I.R.C. § 512(b)(6); see also Treas. Reg. § 1.512(b)–(1)(e)(1) (“The net operating
loss deduction provided in section 172 shall be allowed in computing unrelated
business taxable income.”). But, the Code does not provide for the pass-through of
UBTI losses to an IRA beneficiary’s personal tax return. See I.R.C. §§ 511–13. We
therefore affirm the judgment of the Tax Court.
AFFIRMED.
1
Because Fish does not “clearly and distinctly” challenge the accuracy-related
penalty in his opening brief, that issue is waived. See Avila v. L.A. Police Dep’t, 758
F.3d 1096, 1101 (9th Cir. 2014) (citation omitted).
2