Cir

dissenting:

In reversing the tax court, the majority goes beyond the applicable standard of review for clear error that is limited to determining whether “the [tax court’s] account of the evidence is plausible in light of the record viewed in its entirety.” Wolf v. C.I.R., 4 F.3d 709, 712 (9th Cir.1993) (emphasis added). Although the majority might disagree with how the tax court weighed the evidence before it, the Court of Appeals “ ‘may not reverse [the tax court’s decision] even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’” Id. at 712-713 (citing Service Employee Int’l Union v. Fair Political Practices Comm’n, 955 F.2d 1312 , 1317 n. 7 (9th Cir.1992)). Here, the majority substitutes its own weighing of the evidence for the tax court’s. But the tax court’s conclusion meets the minimum standard of “plausibility in light of the record,” Id. at 712; the majority’s imposition of its own conclusion is an inappropriate overreach of the Court of Appeals’ jurisdiction. Consequently, I respectfully dissent from the majority’s opinion; the tax court’s order should be affirmed.

Negligence in the claiming of a deduction…

MEMORANDUM **

Dr. David Altman and Beverly Altman appeal an order of the United States Tax Court holding them liable for negligently claiming a loss on their 1982 tax return. The Altmans had invested in a project of CAL-NEVA Partners, a Nevada limited partnership involved in growing jojoba *566 beans. The tax court found the Altmans negligent in claiming the tax loss.

We reverse. The tax court clearly erred in concluding that Dr. Altman’s own thorough investigation was insufficient to permit him to make a reasonable decision that the project had some fair prospect of profitability. And the tax court clearly erred in concluding that Dr. Altman’s consultation with Mr. Mohler, and his related conduct in claiming the deduction, was inadequate. See Sacks v. Commissioner, 82 F.3d 918, 920 (9th Cir.1996).

Because the tax court’s determinations regarding the Altmans’ negligence are not supported by the record, we reverse its holding that the Altmans were negligent within the meaning of former § 6658(a) of the Internal Revenue Code for claiming a loss relating to their investment in CAL-NEVA. The decision ordering additions to tax totaling $82,596 is therefore REVERSED.

This…

FILED

NOT FOR PUBLICATION FEB 27 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

DAVID ALTMAN; BEVERLY No. 09-70936

ALTMAN,

Tax Ct. No. 16356-06 Petitioners,

v. MEMORANDUM *

COMMISSIONER OF INTERNAL

REVENUE,

Respondent.

Appeal from a Decision of the United States Tax Court

Argued and Submitted December 8, 2011 San Francisco, California

Before: O'SCANNLAIN, COWEN **, and BERZON, Circuit Judges.

Dr. David Altman and Beverly Altman appeal an order of the United States

Tax Court holding them liable for negligently claiming a loss on their 1982 tax

return. The Altmans had invested in a project of CAL-NEVA Partners, a Nevada

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Robert E. Cowen, Senior Circuit Judge for the Third Circuit, sitting by designation. limited partnership involved in growing jojoba beans. The tax court found the

Altmans negligent in claiming the tax loss.

We reverse. The tax court…