Opinion
Argued and Submitted February 17, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 485.
Avram Salkin, Esq., Sharyn M. Fisk, Esq., Hochman Salkin Rettig Toscher &
Perez, PC, Beverly Hills, CA, for Petitioners-Appellants.
Charles S. Casazza, Randolf L. Hutter, Esq., Eileen J. O'Connor, Esq., DOJ--U.S. Department of Justice Tax Division, Washington, DC, for Respondent-Appellee.
Appeal from a Decision of the United States Tax Court.
Before: B. FLETCHER, TASHIMA, and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Petitioners-Appellants, the Estate of Emanuel Trompeter and the decedent's daughters (collectively "Taxpayers"), appeal the decision of the Tax Court on remand from a prior decision of this court. See Estate of Trompeter v. Comm'r, 279 F.3d 767 (9th Cir.2002); Trompeter v. Comm'r, 87 T.C.M. 851, 2004 WL 205824 (2004). We have jurisdiction pursuant to 26 U.S.C. § 7482.
We affirm the Tax Court in all respects, except for its finding that there were 31 additional coins. The fact that the notation in the diary stated that "approximately" 500 coins had been given to Ira Goldberg indicates that this was an estimate, not the exact number of coins. This notation was the only evidence relied upon by the Tax Court for its finding that there were 31 additional coins. The letter from Superior Stamp & Coin Co.'s lawyer, stating that Superior had failed to pay for the sale of two coins and that Superior still held two other coins, also supports Taxpayers' contention that all of the coins were accounted for. We therefore conclude that there is no basis in the evidence for the Tax Court's finding that there were 31 unaccounted-for additional coins. Thus, its finding was clearly erroneous. See Charlotte's Office Boutique, Inc. v. Comm'r, 425 F.3d 1203, 1211 (9th Cir.2005) (stating that the Tax Court's findings of fact are reviewed for clear error).
The facts are fully set forth in the Tax Court's opinion and our prior opinion, and we do not repeat them here.
We affirm the Tax Court in all other respects, including its fraud finding. Taxpayers' concealment and undervaluation of assets amply support the Tax Court's finding of fraud. But we reverse the Tax Court's finding that there were an additional 31 coins for which Taxpayers failed to account, and remand for further proceedings consistent with this disposition. Each side shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.