
    Richard KELBY; Mabel Kelby, Petitioners-Appellants, v. COMMISSIONER of INTERNAL REVENUE, Respondent-Appellee.
    No. 09-73286.
    United States Court of Appeals, Ninth Circuit.
    Submitted July 12, 2011.
    
    Filed July 22, 2011.
    William Edward Taggart, Jr., Taggart & Hawkins, Oakland, CA, for Petitioner.
    Robert R. Di Trolio, Esquire, Clerk, U.S. Tax Court, Donald L. Korb, Esquire, Acting Chief Counsel, Regina S. Moriarty, Gilbert Steven Rothenberg, Esquire, Deputy Assistant Attorney General, Richard Farber, Esquire, Supervisory, U.S. Department of Justice, Washington, DC, Rebecca Duewer-Grenville, IRS Office of Counsel, San Francisco, CA, for Respondent.
    
      Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Richard and Mabel Kelby appeal from the Tax Court’s decision denying their request for litigation costs pursuant to 26 U.S.C. § 7430. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review for an abuse of discretion. Huffman v. Comm’r, 978 F.2d 1139, 1143 (9th Cir.1992). We affirm.

The Tax Court did not abuse its discretion in determining that the Commissioner’s position on the 1989 tax liability was substantially justified, and thus the Kelbys were not the prevailing party, given the Kelbys’ failure to turn over Mabel Kelby’s notes until more than three years after the Kelbys filed their petition for review. See 26 U.S.C. § 7430 (a party is not a “prevailing party” if the Commissioner’s position was substantially justified); 26 C.F.R. § 301.7430-5(c)(l) (“A significant factor in determining whether the position of the Internal Revenue Service is substantially justified as of a given date is whether, on or before that date, the taxpayer has presented all relevant information under the taxpayer’s control ... to the appropriate Internal Revenue Service personnel.”).

The Kelbys’ remaining contentions are unpersuasive.

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