Commissioner

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GAVIN POLONE,  No. 04-72672 Petitioner, Tax Ct. No. v.  12665-

COMMISSIONER OF INTERNAL

ORDER AND

REVENUE,

OPINION

Respondent.  Appeal from a Decision of the United States Tax Court

Argued and Submitted April 6, 2006—Pasadena, California

Filed October 11, 2007

Before: Jerome Farris and Sidney R. Thomas, Circuit Judges, and George Schiavelli,* District Judge.

Opinion by Judge Thomas

*The Honorable George Schiavelli, United States District Judge for the Central District of California, sitting by designation.

13781 13784 POLONE v. COMMISSIONER OF INTERNAL REVENUE

COUNSEL

James M. Harris, Edwin L. Norris, Jonathan M. Brenner, Sid- ley Austin Brown & Wood LLP, for appellant Gavin Polone.

Bridget M. Rowan, Kenneth L. Greene, Eileen J. O’Connor, United States Department of Justice, for appellee Commis- sioner of the Internal Revenue Service.

ORDER

The opinion filed March 12, 2007, is withdrawn and a sub- stituted opinion is filed concurrently with this order.

With the filing of the opinion, the panel has voted to deny the petition for rehearing.…