Another TP Moral Victory - No Additional Sanctions!

[The Observer]

MARTIN NITSCHKE
Petitioner-Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
Respondent-Appellee

Release Date: MAY 29, 2009


IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Summary Calendar

Appeal from the United States Tax Court
USTC No. 696-07L

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM:/*/

Petitioner-appellant Martin Nitschke, proceeding pro se, appeals the United States Tax Court's denial of a motion to vacate its order and decision sustaining the determinations made by the Internal Revenue Service Appeals Office in favor of respondent-appellee, the Commissioner of Internal Revenue.

For the tax years 1993 and 1997 through 2002, Nitschke either failed to file federal income tax returns or filed returns reflecting a zero tax liability. The Commissioner assessed these liabilities and sent notice and demand to Nitschke, yet a balance remains due. After the Office of Appeals sustained a notice of tax lien issued to Nitschke, the Tax Court upheld this determination. Nitschke moved to vacate the court's order and decision. The Tax Court denied the motion by notation stamped on the document.

On appeal, instead of challenging the underlying tax liabilities, or the Tax Court's imposition of a penalty for frivolous delay,/1/ Nitschke claims only that the Tax Court's denial of his motion to vacate by means of stamped notation is an abuse of discretion. He has waived all other issues by failing to raise and argue them in his opening brief on appeal./2/ This rule applies even when the appellant is appearing pro se./3/

We construe Nitschke's pro se brief liberally./4/ Even so, he fails to demonstrate the Tax Court abused its discretion by denying Nitschke's motion to vacate by stamped notation. Nitschke made one set of meritless arguments to the Tax Court at trial and the Tax Court rejected those claims in a written opinion. Nitschke then re-asserted those same claims in his motion to vacate; he is not entitled to a second written opinion on those issues. The Tax Court's denial of Nitschke's motion to vacate is AFFIRMED.

FOOTNOTES

/*/ Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forthin 5TH CIR. R. 47.5.4.

/1/ In assessing this penalty, the Tax Court noted that Nitschke had previously filed and lost other actions challenging his tax liabilities, and had been warned about the possible imposition of sanctions: Nitschke v. United States, 2003-1 U.S. Tax Cas. (CCH) paragraph 50,432, at 88,242 (D. Nev. 2003) (aff'd 92 F. App'x 529 (9th Cir. 2004)), Nitschke v. Commissioner of Internal Revenue, 76 F. App'x 137 (9th Cir. 2003).

/2/ See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).

/3/ Id.; Knighten v. Commissioner, 702 F.2d 59, 60 n.1 (5th Cir. 1983).

/4/ See United States v. Robinson, 542 F.3d 1045, 1050 (5th Cir. 2008).

[The Observer]

Rather than clutter the board with the original Tax Court ruling on Mssr. Nitschke, here are the following gems taken from the original case (some of which were taken from previous cases lost by our intrepid TP):

In that case petitioner made several frivolous arguments, including that no statute establishes an individual liability for income tax.

...With respect to the instant matter, we are convinced that petitioner instituted this proceeding primarily for delay. Throughout the litigation process, petitioner has advanced contentions and demands previously and consistently rejected by this and other courts.

Hence, although petitioner was well aware of the ramifications under section 6673 of pursuing frivolous actions, he failed in his various filings even to address respondent's request for such a penalty in this case and instead continued to advance patently rejected arguments. The Court concludes that a penalty of $ 2,500 should be awarded to the United States in this case.

...The petition in this case was filed January 8, 2007, and set forth mostly unintelligible accusations against representatives of the Office of Appeals. When the case was called for trial, petitioner declined to testify. Petitioner contends that no notices of deficiency were sent to him because a transcript of his account does not show "Code No. 494", which, according to petitioner, indicates that a statutory notice of deficiency was sent. In the alternative petitioner argues that the IRS records are not complete because if a notice of deficiency was sent, Code 494 should appear on the transcript.

...I request collection alternative including OIC and payment schedule. Collection actions are inappropriate. Procedural defects by Internal Revenue Service exist. I want to see copies of the 90 day letter, Notice and Demand letter (Form 17-A), also Summary Record of Assessment (Form 23-C) or replacement form, RACS Report and my form 4340 "Certificate of Assessment and Payments" and proof that they were sent. I contest the existence or the amount of the tax, because I did not receive a Notice of Deficiency. I also request proof of verification from the Secretary that all applicable the [sic] Service of my intention to make an audio recording of the hearing pursuant to IRC 7521.

...Petitioner argues that the notice of determination could not have been sent after verification of the legal requirements for a valid lien because of the missing code in the transcript. He also argues that the failure to indicate that a notice of deficiency was sent by Code 494 violated Federal law concerning maintenance and retention of accurate records. Petitioner has cited neither authority nor reason why a failure to follow a particular format in recordkeeping, if it occurred, would undermine the validity of the lien filed by reason of his failure to fulfill his income tax obligations.

...Petitioner was repeatedly warned that section 6673 provides for a penalty, not in excess of $ 25,000, whenever it appears to the Tax Court that proceedings before it have been instituted or maintained primarily for delay or the taxpayer's position is frivolous or groundless. Petitioner's history of making frivolous and groundless claims for the obvious purpose of delay justifies a penalty. We will impose a penalty of $ 10,000.

[Judge Roy Bean]

Does anyone have any actual numbers (even formal estimates) of how much of these kinds of sanctions are actually collected?

I have a sense that the extreme wing of the TP community would just as soon keep filing the delaying gibberish because they know they really have no more to lose than they're about to. Plus they gain credibility in regard to their condemnation of the court system as the handmaiden to the IRS/IMF/UN/shape-shifting lizards, etc.

[LPC]

In assessing this penalty, the Tax Court noted that Nitschke had previously filed and lost other actions challenging his tax liabilities, and had been warned about the possible imposition of sanctions: Nitschke v. United States, 2003-1 U.S. Tax Cas. (CCH) paragraph 50,432, at 88,242 (D. Nev. 2003) (aff'd 92 F. App'x 529 (9th Cir. 2004)) ....

Nevada district court always makes me suspect Schiff, so I checked the filings for the case on PACER and, sure enough, Nitschke was a Schiffy. I don't know what he paid Schiff for the two pages of pre-printed drivel that he attached to his 1999 return, but the refund claimed was only $30 and he got hit with a $500 frivolous return penalty that was upheld by the district court and the 9th Circuit.

[The Observer]

I don't know what he paid Schiff for the two pages of pre-printed drivel that he attached to his 1999 return, but the refund claimed was only $30 and he got hit with a $500 frivolous return penalty that was upheld by the district court and the 9th Circuit.

What I find amazingly ironic (or is it ironically amazing? - help me out here, Famspear) is that Nitschke is still pursuing this nonsense at great expense despite the fact that his mentor is currently in prison for peddling these baseless theories. Certainly cause-and-effect has no place in the TP's rationalization.

[Pottapaug1938]

"Certainly cause-and-effect has no place in the TP's rationalization." -- The Observer.

Neither do the facts, such as the fact that people who use TP arguments have NEVER succeeded -- although given the fact that, Humpty-Dumpty style, TPers define "victory" to mean what they want it to mean, they will certainly debate this point.

[LPC]

What I find amazingly ironic (or is it ironically amazing? - help me out here, Famspear) is that Nitschke is still pursuing this nonsense at great expense despite the fact that his mentor is currently in prison for peddling these baseless theories.

I'm quite sure that Nitschke has seen the errors of Schiff's ways, and now has baseless theories that are completely different from Schiff's baseless theories, and yet (oddly enough) still lead Nitschke to the same conclusions.

[Nikki]

Schiff is God: Nitschke

Nitschke is toast: God