Jay L. Depew v. Commissioner of Internal Revenue

19 F.3d 33, 1994 U.S. App. LEXIS 12684, 1994 WL 55564

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 1994
• Docket: 93-9007
• Status: Published

Opinion

19 F.3d 33

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Jay L. DEPEW, Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 93-9007.

United States Court of Appeals, Tenth Circuit.

Feb. 24, 1994.

ORDER AND JUDGMENT1

Before MOORE and KELLY, Circuit Judges, and BRIMMER,** District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this petition for review. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner appeals the decision of the Tax Court sustaining the Commissioner's determination of deficiencies and additions to tax, dismissing petitioner's petition for failure to state a claim upon which relief can be granted, and imposing a $1,000 sanction against petitioner, pursuant to 26 U.S.C. 6673(a), on the ground that the petition was filed primarily for purposes of delay. Based upon our review of the briefs, the record, and the pertinent law, we find petitioner's appeal to be frivolous for substantially the same reasons set forth by the Tax Court in its dismissal order of December 15,1992.

The Commissioner has asked that we impose sanctions in the amount of $1,500 against petitioner for pursuing this frivolous appeal. See Casper v. Commissioner, 805 F.2d 902, 906 (10th Cir.1986)(adopting "a rule awarding a flat fee of $1,500 as a sanction for a frivolous appeal from a Tax Court decision"). Petitioner has had notice and an opportunity to respond to the request for sanctions. See Braley v. Campbell, 832 F.2d 1504, 1515 (10th Cir.1987). Because petitioner's arguments on appeal are legally frivolous, we impose sanctions against petitioner in the amount of $1,500.

The judgment of the United States Tax Court is AFFIRMED. Petitioner's motion not to publish our disposition of this case and to seal the records of the Tax Court and of this court is DENIED.

The mandate shall issue forthwith.

1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

** Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by designation