358 F. App'x 868
9th Cir.
2009

John C. BEDROSIAN; et al., Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

Nos. 08-70508, 08-70548, 08-70809

United States Court of Appeals, Ninth Circuit

December 2, 2009

Argued and Submitted Oct. 7, 2009.

ness of pursuing a claim for five years that was substantially identical to the claim previously denied, without any additional evidentiary basis. See .

The district court’s calculation of an attorney’s fee award of $166,233.50 based on the actual rates charged by Kassar’s attorneys was reasonable under 17 U.S.C. § 505. Because this court has not mandated the lodestar method or comparison to market rates in calculating attorneys’ fees under the Copyright Act, the district court’s decision not to apply those methods did not represent “an inaccurate view of the law.” . The court’s inclusion of an additional $37,850.00 to compensate Kassar’s expert witness was not an abuse of discretion because nontaxable costs may be included in the calculation of “full costs” under 17 U.S.C. § 505. .

AFFIRMED.

Steven Ray Mather, Kajan, Mather & Barish, Beverly Hills, CA, Richard Elston Hodge, Richard E. Hodge, Inc., Malibu, CA, for Petitioners-Appellants.

Arthur Thomas Catterall, Richard T. Morrison, Esquire, John A. Nolet, Department of Justice, Robert R. Di Trolio, Esquire, Clerk, U.S. Tax Court, Donald L. Korb, Esquire, Acting Chief Counsel, Washington, DC, for Respondent-Appellee.

Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.

MEMORANDUM*

Petitioners-Appellants John and Judith Bedrosian appeal three orders of the Tax Court dismissing in whole or in part their challenges to three different notices relating to the same underlying adjustments for the tax years 1999 and 2000. We have jurisdiction over two of these appeals un-der 26 U.S.C. § 7482(a)(1). We affirm in part and dismiss in part.

In the first appeal, the Bedrosians challenge a notice of final partnership administrative adjustment (FPAA) that the IRS mailed on April 8, 2005, pursuant to 26 U.S.C. § 6223(a)(2). The FPAA asserted adjustments to the 1999 tax return of Stone Canyon Partners, a short-lived partnership formed by two companies of which the Bedrosians are the sole owners. The FPAA invalidated transactions between the closely held companies and the partnership, disallowed a loss claimed by the partnership, and imposed an accuracy-related penalty. The Bedrosians filed a petition for readjustment of the FPAA in the Tax Court on May 1, 2007, more than 90 days after the FPAA was mailed. See 26 U.S.C. § 6226(a). Because we determine that the IRS validly mailed the FPAA to the Bedrosians, we affirm the Tax Court’s dismissal for lack of jurisdiction of their untimely petition.

The IRS mailed fourteen copies of the FPAA on April 8, 2005, to three different addresses, including the same address provided for all three entities on the Partnership’s tax return. The IRS did not mail the FPAA to the Bedrosians’ personal residence, which it had on file, because the Bedrosians’ accountant, who had their power of attorney, asked the IRS not to use that address, citing security concerns. The Bedrosians assert that they did not receive the FPAA at any address.

We find it unnecessary to decide whether constitutional due process requires the IRS to mail an FPAA to the “last known address” of a tax matters partner despite the absence of any such requirement in the Code. The address provided by the Be-drosians’ accountant was the last known address, because it would have qualified as “clear and concise notification” of a changed address if the last-known-address standard that applies to a notice of deficiency governed here. See 26 C.F.R. § 301.6212-2; Rev. Proc. 2001-18 §§ 3.03, 5.04-05.

The Tax Court correctly found that the power of attorney permitted the accountant to change the Bedrosians’ own address for purposes of partnership-related notices. The direct relationship between the Bedrosians’ tax returns and those of the partnership makes the accountant’s communication of the Bedrosians’ address for partnership purposes relevant to her representation of the Bedrosians as individual taxpayers. See (“The rule of construction which generally determines the scope of an agent’s implied powers is that an agent has, ‘unless otherwise agreed, authority to do acts which . . . are reasonably necessary to accomplish (the purpose of the agency).’“) (quoting Restatement of Agency § 35). Moreover, the Bedrosians were indirect partners by virtue of their undivided ownership interest in the pass-thru partner companies. Therefore, the IRS was entitled to use “information furnished . . . by any other person” to establish their “name, address, and profits interest” and even to use it “in lieu of the names, addresses, and profits interests of the pass-thru partners.” 26 U.S.C. § 6223(c)(2), (3) (emphasis added); see also 26 C.F.R. § 301.6223(c)-1T(f) (2000).

The Bedrosians also appeal from the Tax Court’s partial dismissal of a case involving a notice of deficiency for their 1999 and 2000 tax years that the IRS issued on April 19, 2005, eleven days after the IRS mailed the FPAA. Because the Tax Court only dismissed the case in part, retaining jurisdiction over the Bedrosians’ claimed deduction for legal, accounting, consulting, and advisory fees related to the partnership, there is no final judgment as to all claims, and we dismiss the appeal for lack of jurisdiction. See .

Finally, the Bedrosians appeal the Tax Court’s dismissal for lack of jurisdiction of their petition on an affected item notice of deficiency that the IRS issued on September 5, 2006, pursuant to 26 U.S.C. 6230(a)(2)(A)(i) after the expiration of the 150-day window for filing a petition for readjustment in the partnership proceeding. See 26 U.S.C. § 6226(b). The Tax Court properly dismissed the petition because the 2006 affected item notice of deficiency was issued after the Bedrosians remitted, and the IRS assessed, pursuant to 26 U.S.C. § 6213(b)(4), the full amount of the deficiency asserted therein. The Bedrosians did not designate their remittance as a deposit, which would have prevented its assessment. See 26 U.S.C. § 6603(a); Rev. Proc. 2005-18 § 4.01. They argue that their undesignated remittance should be treated as a deposit rather than an assessable payment nonetheless, because they remitted “after the mailing of a notice of deficiency“—in this case, the 2005 notice of deficiency. 26 U.S.C. § 6213(b)(4). “Such payment shall not deprive the Tax Court of jurisdiction over such deficiency.” Id. (emphasis added). But both parties concede that the 2005 notice of deficiency was invalid because it was issued while partnership proceedings were pending. No assessment could possibly deprive the Tax Court of jurisdiction over that particular deficiency, because the Tax Court never had jurisdiction over “such deficiency” in the first place. The 2006 affected item notice of deficiency, by contrast, properly asserted deficiencies on affected items after the FPAA became final. The Bedro-sians’ remittance was properly assessed before the issuance of the 2006 affected item notice of deficiency, so the Tax Court did not err in dismissing the case for lack of jurisdiction.

AFFIRMED in 08-70508 and 08-70548; DISMISSED for lack of jurisdiction in 08-70809.

Notes

*
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.