Gary Daniel Cummings v. Commissioner of Internal Revenue

762 F.2d 1006, 1985 WL 13136

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 12, 1985
• Docket: 83-1733
• Status: Unpublished

Opinion

762 F.2d 1006

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
GARY DANIEL CUMMINGS, PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF INTERNAL REVENUE, DEFENDANT-APPELLEE.

NO. 83-1733

United States Court of Appeals, Sixth Circuit.

4/12/85

ORDER

BEFORE: JONES and WELLFORD, Circuit Judges; and BROWN, Senior Circuit Judge.

Plaintiff has appealed the district court's judgment dismissing his tax case. The district court held that plaintiff's suit was barred by the Anti-Injunction Act, 26 U.S.C. Sec. 7421(a). The appeal has been referred to a panel of this Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the briefs and record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff filed this action to enjoin the Internal Revenue Service from collecting a $500 penalty assessed against him for submitting a false W-4 form to his employer. The penalty was assessed under 26 U.S.C. Sec. 6682(a) and, as such, is considered to be a tax. See Barr v. United States, 736 F.2d 1134 (7th Cir. 1984); Herring v. Moore, 735 F.2d 797 (5th Cir. 1984); Souther v. Mihlbachler, 701 F.2d 131 (10th Cir. 1983); 26 U.S.C. Sec. 6671(a). Therefore, plaintiff's suit is barred by the Anti-Injunction Act. See, Barr v. United States, supra; Herring v. Moore, supra.

The exception to the Anti-Injunction Act contained in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1 (1962), does not apply in this case. Plaintiff has made no attempt to show that he is entitled to tax exempt status or that the Internal Revenue Service's position is without merit. He has a judicial remedy by way of a refund suit after payment of the penalty. Plaintiff's due process claim is also without merit. See Bob Jones University v. Simon, 416 U.S. 725 (1974).

Accordingly, it is ORDERED that the district court's judgment is affirmed. Sixth Circuit Rule 9(d)(2). Costs are awarded to the appellee.