Parker v. CIR

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 1997
• Docket: 96-60580
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60580 Summary Calendar _____________________

CAREY K. PARKER; MARY E. PARKER,

Petitioners-Appellants,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee. _________________________________________________________________

Petition for Review of an Order of the United States Tax Court (3456-96) _________________________________________________________________ May 13, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellants Carey K. Parker and Mary E. Parker appeal the tax

court’s dismissal of their petition challenging tax deficiencies

found by the Internal Revenue Service. Finding the Parkers’

arguments to be entirely meritless, we affirm.

The Parkers did not file income tax returns for the years 1991

through 1994. The IRS concluded from the 1099 and W-2 forms

submitted by third-party payors that the Parkers owed in excess of

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. $80,000 in back taxes and penalties, and sent the Parkers notices

of these deficiencies. The Parkers filed a petition for

redetermination in which they argued (1) that the IRS lacked

authority to assess income taxes, determine deficiencies, or assess

tax penalties because there were no proper implementing

regulations; (2) that the IRS’ determinations were arbitrary and

without factual foundation; (3) that they are “Texas State

Citizens” residing in “on of the American Republics named the

‘State of Texas’” and therefore were not subject to federal income

tax because they are “foreign” to the United States; and (4) that

their income was part of their “estate,” which is “foreign to the

corporate United States Government” and not includable in gross

income. The Commissioner moved to dismiss the petition for failure

to state a claim. The tax court found that the Parkers’ petition

was based upon “frivolous constitutional arguments” that were

“totally without merit” and granted the motion to dismiss.

On appeal, the Parkers have abandoned most of these arguments,

but they have clarified their claim that the IRS’ determinations

were “arbitrary.” The Parkers now insist that the determinations

are “arbitrary” because they are based upon 1099 and W-2 forms

submitted by third-party payors, claiming that “the Commissioner

has some duty to investigate the payers [sic] bald assertion of

-2- payment and determine if the payers [sic] position was supported by

their books, receipts, or other records.”

The Parkers cite our decision in Portillo v. Commissioner, 932

F.2d 1128 (5th Cir. 1991), as support for this position. In

Portillo, the IRS issued a notice of deficiency when it discovered

that the taxpayer had reported substantially less income from a

particular payor than that payor had reported in its Form 1099. We

found that the Commissioner “arbitrarily decided to attribute

veracity to [the third-party payor] and assume that [the

taxpayer’s] Form 1040 was false.” Id. at 1134. In Portillo, the

Commissioner’s determination was arbitrary because the Commissioner

offered no factual basis for accepting one sworn statement, the

Form 1099, while rejecting another sworn statement, the taxpayer’s

Form 1040.

Portillo did not hold that the IRS must conduct an independent

investigation in all tax deficiency cases. In this case, the

Commissioner has not arbitrarily found the third-party forms

credible: the Parkers never filed a Form 1040 or any other

document in which they swore that they did not receive the payments

in question. The Commissioner has no duty to investigate a third-

party payment report that is not disputed by the taxpayer.

The Parkers additionally suggest, in their statement of facts,

that the requirement that individuals file income tax returns

-3- violates the constitutional right against self-incrimination.

Although this argument was not raised before the tax court and

therefore is not properly raised here, we observe that the Parkers’

position is plainly frivolous.

The decision of the tax court dismissing the Parkers’ petition

for redetermination for failure to state a claim is therefore

affirmed.

Also before this court is the Commissioner’s motion that

sanctions be assessed against the Parkers for bringing a frivolous

appeal. The Internal Revenue Code specifically authorizes the

Court of Appeals to impose a penalty in cases “where the decision

of the Tax Court is affirmed and it appears that the appeal was

instituted or maintained primarily for delay or that the taxpayer’s

position in the appeal is frivolous or groundless.” 26 U.S.C.

§ 7482(c)(4). In past cases, this penalty has been single costs,

double costs or a lump sum sanction.

As we have previously observed, imposing a lump sum sanction

saves the government the additional cost of calculating its

expenses, and also saves the court the time and expense of

reviewing the submission of costs. Stelly v. Commissioner, 804

F.2d 868, 871 (5th Cir. 1986), cert. denied, 480 U.S. 907, 107

S.Ct. 1352 (1987) (setting lump sum sanction “saves both government

time in preparing and filing of affidavits and judicial time in

-4- considering such affidavits”). See also Stoecklin v. Commissioner,

865 F.2d 1221, 1226 (11th Cir. 1989); Crain v. Commissioner, 737

F.2d 1417, 1418 (5th Cir. 1984).

In this case, after the government filed its motion to dismiss

on the ground that the Parkers’ petition cited only frivolous and

unsupported arguments, the tax court specifically ordered the

Parkers to file an amended petition alleging each error with

specificity, and with “separate statements of every fact upon which

the petitioner bases the assignment of each error.” Despite this

opportunity, the Parkers’ amended petition simply repeats the

meritless constitutional arguments of their original petition. In

its order dismissing the petition, the tax court specifically

stated that the Parkers had raised “frivolous allegations” that

were “nothing but tax protestor rhetoric and legalistic gibberish.”

Despite this warning that their claims were meritless, the Parkers

filed the present appeal in which they continued to maintain that

the entire Tax Code is an elaborate “fraud” designed to “catch the

naïve.” The Parkers insist that the “IRS lie” is based upon a

“deception” that is “thorough, deep and wide.”

Although some latitude may be afforded to pro se taxpayers who

misunderstand the nature of the tax laws, pro se status is not a

license to litter the dockets of the federal courts with ridiculous

allegations that the Internal Revenue Code is the product of an

-5- illegal conspiracy. The Commissioner has requested a sanction of

$2000, citing cases imposing sanctions of that amount and higher.

We agree with the Commissioner that this is a reasonable penalty,

and find that imposing a lump sum sanction in lieu of costs

conserves both government and judicial resources. We therefore

impose a sanction of $2000, which we hope will deter the Parkers

from any further frivolous filings.

AFFIRMED; SANCTIONS IMPOSED.

-6-