Cir

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAIDLAW’S HARLEY DAVIDSON No. 20-73420

SALES, INC.,

Petitioner-Appellee, Tax Ct. No. 14616-14L v.

COMMISSIONER OF INTERNAL OPINION

REVENUE,

Respondent-Appellant.

Appeal from a Decision of the United States Tax Court

Argued and Submitted December 6, 2021 Pasadena, California

Filed March 25, 2022

Before: Marsha S. Berzon, Carlos T. Bea, and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Bea; Dissent by Judge Berzon LAIDLAW’S HARLEY DAVIDSON SALES V. CIR

SUMMARY *

Tax

The panel reversed a decision of the Tax Court granting summary judgment to a taxpayer, in a case involving when a supervisor must provide the written approval required by 26 U.S.C. § 6751(b) before the Internal Revenue Service assesses certain penalties.

Taxpayer was required to disclose its participation in a purported welfare benefit plan (“Plan”) as a “listed transaction.” Taxpayer initially did not disclose its participation in the Plan, but later acknowledged that the Plan was a listed transaction. A Revenue Agent (RA) made the initial determination to assert a penalty for…