TP Makes His Way to Future FrivPen

[The Observer]

IRVIN E. TALIAFERRO,
Plaintiff-Appellant,
v.
FREEMAN, IRS,
Defendant,
UNITED STATES OF AMERICA,
Defendant-Appellee.

Release Date: DECEMBER 29, 2014

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Non-Argument Calendar

D.C. Docket No. 1:13-cv-00094-WLS

Appeal from the United States District Court
for the Middle District of Georgia

(December 29, 2014)

Before MARCUS, JORDAN, and BLACK, Circuit Judges.

PER CURIAM:

Irvin E. Taliaferro, proceeding pro se, filed a complaint seeking to enjoin the Internal Revenue Service from issuing notices of levy and directing it to return monies already seized as a result of its notices of levy. The district court dismissed for failure to state a claim and for lack of subject-matter jurisdiction.

On appeal, Mr. Taliaferro argues he is not a taxpayer, and is not subject to federal taxation, because (1) the Sixteenth Amendment authorizes the imposition of excise taxes but not income taxes; (2) Congress has taxing authority over only federal enclaves; (3) IRS levies may be served only to collect taxes owed by federal employees; and (4) although he is a United States citizen, for purposes of the tax code, he is a nonresident alien who is subject to taxation only on income that is connected with the conduct of a trade or business. Mr. Taliaferro also contends that the levies violate his Fourth Amendment right to be free from unreasonable seizures and his Fifth Amendment right to due process. Mr. Taliaferro's arguments are unavailing, and we affirm. I

"We review dismissals for lack of federal subject-matter jurisdiction de novo." Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). Plenary review also applies to dismissals for failure to state a claim. Magluta v. Samples, 256 F.3d 1282, 1283 (11th Cir. 2001).

Apart from several statutory exceptions not applicable here, the Anti-Injunction Act, 26 U.S.C. section 7421(a), "generally forbids courts to restrain the IRS from assessing or collecting a tax." Hempel v. United States, 14 F.3d 572, 573 (11th Cir. 1994). The Act bars not only suits that directly seek to restrain the assessment or collection of taxes, but also suits that seek to restrain IRS activities "'which are intended to or may culminate in the assessment or collection of taxes.'" Kemlon Prods. & Dev. Co. v. United States, 638 F.2d 1315, 1320 (5th Cir.), modified on other grounds, 646 F.2d 223 (5th Cir. May, 1981) (quoting United States v. Dema, 544 F.2d 1373, 1376 (7th Cir. 1976)). Under a judicially-created exception to the Act, "no injunction will issue unless the plaintiff can show that under no circumstances could the government ultimately prevail and there exists an independent basis for equity jurisdiction." Hobson v. Fischbeck, 758 F.2d 579, 581 (11th Cir. 1985) (citing Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7 (1962)). Even if the government cannot ultimately prevail, however, an injunction will not issue where the plaintiff has an adequate remedy at law. Id.

Mr. Taliaferro sought injunctive relief in the form of an order directing the IRS to cease collecting taxes from him by levy and to return to him all monies already collected by levy. Because the relief Mr. Taliaferro requested would restrain the IRS from collecting his unpaid tax liability, the suit was barred by the Tax Anti-Injunction Act. See section 7421(a); Kemlon Prods., 638 F.2d at 1320. 1

The judicially-created exception to the Act does not apply because the government would likely prevail on Mr. Taliaferro's meritless claims. First, Congress has the power to lay and collect taxes, and the IRS is charged with enforcing the collection of taxes. Madison v. United States, 758 F.2d 573, 574 (11th Cir. 1985). Second, "[for nearly a century], the Supreme Court has recognized that the sixteenth amendment authorizes a direct nonapportioned tax upon United States citizens throughout the nation, not just in federal enclaves." United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990). Third, we previously rejected as frivolous Mr. Taliaferro's argument that the federal income tax only applies to federal employees. See Taliaferro v. C.I.R., 272 F. App'x 831, 833 (11th Cir. 2008). Fourth, Mr. Taliaferro admits to being a United States citizen, and he is not a non-resident alien for purposes of the tax code. See 26 U.S.C. section 7701(b)(1)(B) ("An individual is a nonresident alien if such individual is neither a citizen of the United States nor a resident of the United States[.]"). Finally, Mr. Taliaferro's arguments as to the Fourth and Fifth Amendments and their applicability in this case are simply without merit, and do not warrant further discussion.

Even if we were to assume that the government was sure to lose on the merits of Mr. Taliaferro's claims, an injunction would still be improper because Mr. Taliaferro "has an adequate remedy at law -- he can pay the disputed taxes and then sue for a refund." Hobson, 758 F.2d at 581. See also 26 U.S.C. section 7422(a) ("No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . until a claim for refund or credit has been duly filed with the Secretary."); Flora v. United States, 362 U.S. 145, 157 (1960) (construing 28 U.S.C. section 1346(a)(1) as requiring full payment of taxes owed before bring suit against the United States). Mr. Taliaferro admits that he has not filed an income tax return since 1995, and therefore has chosen not to avail himself of this remedy.

We therefore affirm the district court's dismissal of Mr. Taliaferro's complaint.

III

The government, by separate motion, asks us to impose sanctions on Mr. Taliaferro. We agree that sanctions are warranted.

Pursuant to Federal Rule of Appellate Procedure 38, if we "determine[] that an appeal is frivolous, [we] may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee." We have held that sanctions are appropriate "where an appeal is patently frivolous, Hobson, 758 F.2d at 581, and have "indicated that [we] will impose double costs and attorney's fees where a taxpayer prosecutes a frivolous appeal." Ricket v. United States, 773 F.2d 1214, 1216 (11th Cir. 1985). Although we are generally reluctant to do so, we have imposed sanctions on pro se litigants in certain situations. See United States v. Morse, 532 F.3d 1130, 1133 (11th Cir. 2008) (citing cases). Sanctions have been imposed, for example, where the "appellant's contentions are stale and have long been settled." McNair v. Eggers, 788 F.2d 1509, 1510 (11th Cir. 1986).

By Mr. Taliaferro's own admission, he is no novice when it comes to tax law. In his brief to this Court, he boasts about spending "two years researching the tax codes relative to tax on income, [] Supreme Court Decisions, the Uniform Commercial Codes and Federal Court Decisions." Appellant's Br. at 3. Mr. Taliaferro's instant complaint and arguments before this Court are essentially an attempt to re-litigate whether the government has the authority to assess taxes against him and to collect those taxes by levy. His arguments are without any arguable merit, as we explained in our 2008 decision involving Mr. Taliaferro. See Taliaferro, 272 F. App'x at 833. As discussed above, his contentions "have long been settled."

Federal courts should not countenance the prosecution of frivolous appeals. In the interest of judicial economy, and in an attempt to dissuade meritless appeals like this one, we find that sanctions against Mr. Taliaferro are appropriate. We direct the district court, upon receipt of the mandate and after a hearing, to determine the appropriate amount of sanctions against Mr. Taliaferro, up to and including double costs. See Fed. R. App. P. 38; Hobson, 758 F.2d at 581.

AFFIRMED; SANCTIONS IMPOSED.

FOOTNOTES:

/1/ "[T]he federal tax exception to the Declaratory Judgment Act[, 28 U.S.C. section 2201(a),] is at least as broad as the prohibition of the Anti-Injunction Act[.]" Mobile Republican Assembly v. United States, 353 F.3d 1357, 1362, 1363 n.6 (11th Cir. 2003). Thus, the district court was correct in pointing out that declaratory relief was not available to Mr. Taliaferro insofar as he sought to have actions taken by the IRS declared illegal.

[The Observer]

You can read about his earlier trial in the archives.

[Gregg]

You can read about his earlier trial in the archives.

At that trial,

Taliaferro opposed the motion, repeating the arguments from his petition, and additionally arguing that the Sixteenth Amendment applied only to the national government and its employees.

Just once, I'd like to see one of these bozos argue that the Second Amendment only applied to the national government and its employees.

[The Observer]

Just once, I'd like to see one of these bozos argue that the Second Amendment only applied to the national government and its employees.

For that matter, I'd like to see them argue that any of the amendments only apply to federal employees.

[LPC]

Just once, I'd like to see one of these bozos argue that the Second Amendment only applied to the national government and its employees.

For that matter, I'd like to see them argue that any of the amendments only apply to federal employees.

Applying the Third Amendment to federal employees would be kind of interesting, because it would prevent the federal government from quartering soldiers in their own homes.

[The Observer]

Applying the Third Amendment to federal employees would be kind of interesting, because it would prevent the federal government from quartering soldiers in their own homes.

Yeah, but we would get the pleasure of seeing government troops being quartered in TP residences - such as they are.

[rosvicl]

Just once, I'd like to see one of these bozos argue that the Second Amendment only applied to the national government and its employees.

For that matter, I'd like to see them argue that any of the amendments only apply to federal employees.

Applying the Third Amendment to federal employees would be kind of interesting, because it would prevent the federal government from quartering soldiers in their own homes.

It does apply: a court ruled some decades ago that if someone in the military has their own off-base housing, they can't be ordered/required to let other soldiers stay there.

Barracks, obviously, belong to the U.S. military, so it doesn't apply: but enlisting doesn't mean you/your parents no longer own your home, or that you have to let someone else stay in a house or apartment you're paying the rent for.

(I have no idea whether a good lawyer could make a case for "you can't make me stay in my off-base housing if I want to sleep in the barracks.")

[The Observer]

IRVIN E. TALIAFERRO,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

Release Date: JANUARY 25, 2017


[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Appeal from the United States District Court
for the Middle District of Georgia

(January 25, 2017)

Before MARCUS, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:

Irvin E. Taliaferro filed this pro se action seeking to enjoin the Internal Revenue Service ("IRS") from issuing notices of levy to collect unpaid income taxes and to force the IRS to return to him all monies already seized as a result of its levies. The district court dismissed Taliaferro's complaint sua sponte, pursuant to 28 U.S.C. section 1915(e), for frivolity and for lack of subject-matter jurisdiction.

On appeal, Taliaferro first argues that the district court procedurally erred in dismissing his complaint because, in his view, section 1915(e) does not apply to non-prisoners. Next, on the substance of his claims, Taliaferro contends that he is not a "taxpayer" with taxable "income." He asserts that taxable income does not include compensation for labor or services. He also appears to argue that the IRS lacks the authority to collect income taxes beyond federal land or from private citizens who are not federal employees. Taliaferro's arguments are unavailing. We affirm.

We review de novo a district court's decision to dismiss an action for lack of federal subject-matter jurisdiction. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). We review a district court's sua sponte dismissal for frivolity under 28 U.S.C. section 1915(e)(2)(B)(i) for an abuse of discretion, though a district court's ruling on issues of res judicata is reviewed de novo. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). We liberally construe the filings of pro se parties. Id.

Initially, the district court did not procedurally err by relying on section 1915(e) in its dismissal order. In forma pauperis ("IFP") proceedings are governed by 28 U.S.C. section 1915. The statute is intended to provide all indigent litigants with meaningful access to courts by removing the obstacle of poverty. Neitzke v. Williams, 490 U.S. 319, 324 (1988). Congress recognized, however, that an indigent litigant, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous or repetitive lawsuits. Id. To prevent such frivolous or abusive litigation, Congress authorized the federal courts to dismiss IFP actions sua sponteon various grounds. 1 Id.; see also Denton v. Hernandez, 504 U.S. 25,31 (1992). Thus, under section 1915(e), district courts have the power to screen complaints filed by all IFP litigants, prisoners and non-prisoners alike. See Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999); see also Troville v. Venz, 303 F.3d1256, 1259-60 (11th Cir. 2002) ("find[ing] no error" in the district court's dismissal of a non-prisoner's complaint under section 1915(e)(2)(B)(ii)).

In any case, even assuming without deciding that section 1915(e) did not apply, "a court sua sponte can raise a jurisdictional defect at any time, leading to dismissal of the relevant action." Barnett v. Bailey, 956 F.2d 1036, 1039 (11th Cir. 1992); seeFed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). Here, sua sponte dismissal was appropriate because the district court correctly determined that it lacked subject-matter jurisdiction pursuant to the Anti-Injunction Act, 26 U.S.C. section 7421(a). See Leves v. I.R.S., Comm'r, 796 F.2d 1433, 1434-35 (11th Cir. 1986) (affirming dismissal of complaint for lack of subject-matter jurisdiction where the Anti-Injunction Act barred the suit).

The Anti-Injunction Act (the "Act"), 26 U.S.C. section 7421(a), apart from several statutory exceptions not applicable here, "generally forbids courts to restrain the IRS from assessing or collecting a tax." Hempel v. United States, 14 F.3d 572, 573 (11th Cir. 1994); see 26 U.S.C. section 7421(a) ("[N]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."). The Act bars not only suits that directly seek to restrain the assessment or collection of taxes, but also suits aimed at interfering with "activities which are intended to or may culminate in the assessment or collection of taxes." Kemlon Prods. & Dev. Co. v. United States, 638 F.2d 1315, 1320 (5th Cir. March1981), modified on other grounds, 646 F.2d 223 (5th Cir. 1981) (quotation marks omitted). 2

We have recognized a judicial exception to the Act applicable if the plaintiff shows both that "(1) under no circumstances could the government ultimately prevail on its tax claim and (2) equity jurisdiction otherwise exists." Mathes v. United States, 901 F.2d 1031, 1033 (11th Cir. 1990). Equitable relief is not available if the plaintiff has an adequate remedy at law. Hobson v. Fischbeck, 758 F.2d 579, 581 (11th Cir. 1985).

In his complaint, Taliaferro sought injunctive relief in the form of an order directing the IRS to cease collecting taxes from him by levy and to return to him all monies already collected by levy. Accordingly, the Anti-Injunction Act bars his lawsuit unless an exception applies. See 26 U.S.C. section 7421(a); Kemlon Prods., 638 F.2d at 1320; see also Taliaferro v. Freeman, 595 F. App'x 961, 962-63 (11th Cir. 2014) (reaching the same result). 3 But Taliaferro has not shown that an exception applies.

The judicially created exception to the Act does not apply because, as we explained in Taliaferro's prior appeal raising similar claims, "the government would likely prevail on Mr. Taliaferro's meritless claims." Taliaferro, 595 F. App'x at 963 (rejecting similar claims). We previously have rejected, as frivolous, arguments that wages are not taxable income and that the income tax applies only to the federal government and its employees. See Motes v. United States, 785 F.2d 928, 928 (11th Cir. 1986) (determining as frivolous, among other things, arguments that only public servants are subject to tax liability and that wages are not income subject to tax); Biermann v. C.I.R., 769 F.2d 707, 708 (11th Cir. 1985) (stating that similar arguments were "patently frivolous, have been rejected by courts at all levels of the judiciary, and . . . warrant no further discussion"); see also United States v. Pilcher, 672 F.2d 875, 877 (11th Cir. 1982) ("Every income earner is required to file an income tax return.").

In addition, even if Taliaferro could show that the government was sure to lose on the merits of his claims, an injunction still would be improper because Taliaferro has "an adequate remedy at law -- he can pay the disputed taxes and then sue for a refund." Hobson, 758 F.2d at 581; see also 26 U.S.C. section 7422(a) ("No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . until a claim for refund or credit has been duly filed with the Secretary."). Taliaferro admits that he has not filed an income-tax return for any year that the IRS is claiming that income taxes are owed. So, he has chosen not to avail himself of this remedy.

We therefore affirm the district court's dismissal of Taliaferro's complaint. 4

AFFIRMED.

FOOTNOTES:

/1/ Currently, section 1915(e)(2) provides that "the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal -- (i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted." 28 U.S.C. section 1915(e)(2).

/2/ This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

/3/ Taliaferro previously filed a materially similar lawsuit, which was likewise dismissed for lack of subject-matter jurisdiction under the Anti-Injunction Act. See Taliaferro v. Freeman, 595 F. App'x 961, 962-63 (11th Cir. 2014). We discern no meaningful difference between the claims and arguments we address in this case and those Taliaferro presented in that earlier case, but, regardless of whether res judicata applies, the Anti-Injunction Act plainly bars his current complaint.

/4/ Taliaferro's "Motion for Judgment" is DENIED.

[.]

Taliaferro first argues that (...) section 1915(e) does not apply to non-prisoners.

Taliaferro admits that he has not filed an income-tax return for any year that the IRS is claiming that income taxes are owed.

I wonder if this genius has figured out that if he persists in his non-filing nonsense, he too might become a long-term guest of the Feds, making his "non-prisoner" gibberish impossible to posit. Then again, he'd probably just change it to 1915(e) not being applicable to prisoners. Which would make perfect TP sense.

[The Observer]

I wonder if this genius has figured out that if he persists in his non-filing nonsense, he too might become a long-term guest of the Feds...

That's what we need! A frivpen that results in a criminal sentence!