Macek

MEMORANDUM **

Michael Macek appeals pro se the district court’s order denying his motion for summary judgment and granting summary judgment to the Internal Revenue Service (“IRS”). We have jurisdiction pursuant to 28 U.S.C. § 1291 . After de novo review, Arakaki v. Hawaii 314 F.3d 1091, 1094 (9th Cir.2002), we affirm.

The District Court correctly determined that Macek is not entitled to a refund for 1996 and 1997 merely because he was granted a refund on similar grounds for 1995, because the IRS investigated each tax year separately to determine what unreported income and exemptions would apply. Res judicata does not apply as the 1995 refund was never litigated.

The district court properly concluded that a deficiency determination by the IRS is entitled to a presumption of correctness if it is based on some substantive evidence that the taxpayer received the unreported income. See Hardy v. Comm’r, 181 F.3d 1002, 1004 (9th Cir. 1999). The IRS provided a sufficient evidentiary foundation for its counterclaim, including evidence Macek made cash withdrawals from accounts of companies he was involved in, and Macek’s declaration that he lived off of his personal savings from…