NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT JONES, BELL, ABBOTT, FLEMING & No. 18-55934 FITZGERALD L.L.P.,

D.C. No. 2:17-cv-07752-PA-RAO

Plaintiff-Appellant, v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Submitted October 15, 2019** Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Jones, Bell, Abbot, Fleming & Fitzgerald L.L.P. appeals from the district court’s judgment dismissing its 28 U.S.C. § 1346(a)(1) action arising from the Internal Revenue Service’s (“IRS”) assessment of a tax penalty for the late filing of appellant’s 2015 partnership return. We have jurisdiction under 28 U.S.C. § 1291.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review de novo a district court’s judgment under Federal Rule of Civil Procedure 52(c). Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir. 1994). We affirm.

The district court properly determined that appellant’s evidence was insufficient to show that it timely mailed an application for a tax return filing extension. See Lewis v. United States, 144 F.3d 1220, 1222-23 (9th Cir. 1998) (a taxpayer must provide “credible evidence” of timely mailing of a document in order to a raise a rebuttable presumption that the document was timely received by the addressee). The district court therefore properly concluded that the IRS properly assessed a penalty against appellant for not timely filing its 2015 partnership return.

AFFIRMED.

2 18-55934