Hromiko v. Commissioner

56 F. App'x 359

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2003
• Docket: No. 01-71640; IRS No. 15974-99
• Status: Published

Opinion

MEMORANDUM

**

Andy Hromiko appeals pro se the Tax Court’s decision affirming the Commissioner of Internal Revenue’s determination of federal income tax deficiencies and penalties for tax years 1994, 1995, 1996 and 1997. We have jurisdiction under 26 U.S.C. § 7482(a). We review de novo the Tax Court’s legal conclusions, and review for clear error its findings of fact. Baizer v. Comm’r, 204 F.3d 1231, 1233-34 (9th Cir.2000). We review for abuse of discretion the Tax Court’s imposition of sanctions. Wolf v. Comm’r, 4 F.3d 709, 716 (9th Cir.1993). We affirm.

The Tax Court correctly concluded that Hromiko received taxable earnings for the years 1994 through 1997 that he assigned to a trust to avoid paying tax. See Zmuda v. Comm’r, 731 F.2d 1417, 1420-21 (9th Cir.1984). The Tax Court did not clearly err in upholding penalties for failure to file returns and failure to pay estimated tax. See Henry v. Comm’r, 170 F.3d 1217, 1219 (9th Cir.1999).

The Tax Court did not abuse its discretion when it imposed a $12,500 sanction under 26 U.S.C. § 6673(a) on the grounds that Hromiko’s positions were frivolous and he instituted this action primarily for delay. See Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.1985) (“This court has repeatedly rejected the argument that wages are not income as frivolous.”).

The Tax Court did not abuse its discretion when it denied Hromiko’s motion to withdraw deemed admissions, as Hromiko failed to respond to propounded admissions even after receiving an extension of time to respond. See Hadley v. United States 45 F.3d 1345, 1348 (9th Cir.1995) (construing Fed.R.Civ.P. 36(b), which is analogous to Tax Ct. R. 90(f)).

Hromiko’s remaining contention regarding the appellate process also lacks merit.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.