Second Circuit Keeps It Short And Sweet

[The Observer]

ADAM ZUCKMAN,
Plaintiff-Appellant,
v.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
UNITED STATES OF AMERICA, TIMOTHY F. GEITHNER,
TREASURY SECRETARY, LAWRENCE R. ENGLE, REVENUE OFFICER,
COMMISSIONER OF INTERNAL REVENUE SERVICE, MTA-NYCTA,
HALLUM ABDELHACK, RICHARD DREYFUS,
Defendants-Appellees.

Release Date: JANUARY 18, 2012

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 18 day of January, two thousand twelve.

PRESENT:

Dennis Jacobs,
Chief Judge,

Richard C. Wesley,
Susan L. Carney,
Circuit Judges.

FOR PLAINTIFF-APPELLANT:

Adam Zuckman, pro se, Brooklyn, NY.

FOR DEFENDANTS-APPELLEES

Department of the Treasury, Internal Revenue Service, United States of America, Timothy F. Geithner, Treasury Secretary, Lawrence R. Engle, Revenue Officer, Commissioner of Internal Revenue Service:

Janet A. Bradley, Attorney, Gilbert S. Rothenberg,
Acting Deputy Assistant Attorney General, Bruce R.
Ellison, Attorney, Tax Division, United States Department
of Justice, Washington, D.C.

FOR DEFENDANTS-APPELLEES

MTA-NYCTA, Hallum Abdelhack, Richard Dreyfus:

Kristen M. Nolan, Attorney, New York City Transit
Authority, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Garaufis, J.).

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.

Plaintiff-Appellant Adam Zuckman appeals from a judgment of the United States District Court for the Eastern District of New York (Garaufis, J.), granting the motions of defendants to dismiss his complaint challenging a levy allegedly placed on his wages by the Internal Revenue Service. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review district court determinations on Rule 12(b)(1) and 12(b)(6) motions to dismiss de novo. See Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is proper "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In ruling on a Rule 12(b)(6) motion, we accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Additionally, because Zuckman appears pro se, we are obligated to read his submissions with "special solicitude," interpreting them to raise the "strongest arguments that they suggest." See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks omitted).

Here, an independent review of the record and relevant case law reveals that the district court properly granted the defendants' motions and dismissed Zuckman's complaint. We therefore affirm for substantially the same reasons stated by the district court in its memorandum and order. Even liberally construing his pro se complaint, the claims raised by Zuckman do not satisfy the applicable pleading standards. Contrary to Zuckman's contentions, the federal income tax is constitutional, wages are taxable income, and the Sixteenth Amendment removed the apportionment requirement for direct taxes. See, e.g., Ficalora v. Comm'r of Internal Revenue, 751 F.2d 85, 87-88 (2d Cir. 1984). To the extent that Zuckman challenges the levy on his wages, there is no indication that he exhausted his administrative remedies. Thus, the district court properly dismissed those claims for lack of subject matter jurisdiction. See 26 U.S.C. section 7422, 7429; see also Wapnick v. United States, 112 F.3d 74, 75 (2d Cir. 1997) (per curiam).

We have considered Zuckman's remaining arguments and conclude that they are without merit.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

[Cpt Banjo]

It's too bad the court included an obvious goof like "the Sixteenth Amendment removed the apportionment requirement for direct taxes."

[LPC]

It's too bad the court included an obvious goof like "the Sixteenth Amendment removed the apportionment requirement for direct taxes."

I agree.

And that's the kind of thing that makes unpublished "summary orders" a good idea (sometimes).

[truth]

it insults my intelligences to think as an american we hold ourselves to be world leaders but we can not read and understand what we read. what did the 16th amendment got rid of direct tax on? income! now stop pulling the web over my eyes and the rest of americans who thinks for themselves+, and the name calling , because someonehas the right to object to something like tax that is being applied out of context they are tax protesters. question, what type of a tax was the 16th amendment enforcing, an excise tax. see the difference between the provision of article 1, section 8, clause 1 and the 16th amendment is the word income, compare both did you need the 16th amendment after reading article 1, section 8, clause 1. so look up the meaning of income in supreme court cases, as an excise tax how can such tax be lawful on the labor of a human being. labor that congress does not have the enumerated power to regulate. so be nice and stop calling people names.

[fortinbras]

The 16th Amendment did not mention "direct taxes" and did not apply to any tax other than income tax. It merely eliminate whatever apportionment requirement that might have been applicable to a tax on income.

I phrase it that way because it was, and is, unclear whether an income tax is an DIRECT tax rather than an indirect tax. Yes, there are authorities on both sides. So, IF the income tax were a direct tax, the 16th Amendment eliminated the apportionment requirement for it. And if the income tax is an indirect tax, as some believed, the 16th Amendment at least shuts down arguments about it.

[Cpt Banjo]

how can such tax be lawful on the labor of a human being. labor that congress does not have the enumerated power to regulate.

You are suffering from a misconception common to many tax deniers by thinking that the power to tax something is dependent on the power to regulate it. The Supreme Court decided almost 150 years ago that such was not the law in The License Tax Cases, 72 U.S. 462 (1866), where it stated "It is true that the power of congress to tax is a very extensive power. It is given in the constitution, with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and
indirect taxes by the rule of uniformity. Thus limited, and thus only, it reaches every subject, and may be exercised at discretion." (emphasis added)

Moreover, the income tax doesn't tax labor. It taxes, among other things, the income one receives from laboring.

[Pottapaug1938]

it insults my intelligences to think as an american we hold ourselves to be world leaders but we can not read and understand what we read. what did the 16th amendment got rid of direct tax on? income! now stop pulling the web over my eyes and the rest of americans who thinks for themselves+, and the name calling , because someonehas the right to object to something like tax that is being applied out of context they are tax protesters. question, what type of a tax was the 16th amendment enforcing, an excise tax. see the difference between the provision of article 1, section 8, clause 1 and the 16th amendment is the word income, compare both did you need the 16th amendment after reading article 1, section 8, clause 1. so look up the meaning of income in supreme court cases, as an excise tax how can such tax be lawful on the labor of a human being. labor that congress does not have the enumerated power to regulate. so be nice and stop calling people names.

Well, given the semi-literate quality of your post, you insult yourself worse than any of us. As for the 16th Amendment, what it did was to remove the requirement that the source of income be determined in order to decide its susceptibility to taxation of income, which was already legal. As for taxation of money received in exchange for labor, you are being taxed on the financial gain realized from your labor. Think of it this way: if you work eight hours at your job, your labor cost you nothing -- or, to put it another way, your cost basis in your labor is zero. When you complete your labor, you get money in your paycheck; and since you did not lay out money to buy the labor you provided, you realize a financial gain, which is taxable.

[Famspear]

.....as an excise tax how can such tax be lawful on the labor of a human being. labor that congress does not have the enumerated power to regulate.....

The federal income tax is indeed denominated as an "excise" by most courts.

The federal income tax does not tax the "labor of a human being." There is, however, nothing in the U.S. Constitution that would prohibit a tax on the "labor of a human being."

The federal income tax is imposed on, among other things, compensation received by a human being for providing labor.

From the U.S. Court of Appeals for the Eighth Circuit:

It is not disputed that Taxpayers failed to report as income wages received during the 1976 and 1977 taxable years. They argue that compensation for labor is not constitutionally subject to the federal income tax, that an individual's labor is capital in which he or she possesses a property right, that an individual has the right to exchange that property for other property, i.e. money, and that such a transaction is an equal exchange which does not give rise to any profit. [ . . . ] Taxpayers' argument that compensation for labor is not constitutionally subject to the federal income tax is without merit. There is no constitutional impediment to levying an income tax on compensation for a taxpayer's labors...

--from Funk v. Commissioner, 687 F.2d 264 (8th Cir. 1982) (per curiam).

In case you missed it:

"There is no constitutional impediment to levying an income tax on compensation for a taxpayer's labors."

[LPC]

so look up the meaning of income in supreme court cases, as an excise tax how can such tax be lawful on the labor of a human being.

Why not? Why can't there be an excise on the sale of labor?

And why doesn't payment for labor result in income?

“[T]he earnings of the human brain and hand when unaided by capital ... are commonly dealt with as income in legislation.” Stratton’s Independence, Ltd. v. Howbert, 231 U.S. 399, 415 (1913).

“Wages usually are income ....” Central Illinois Public Serv. Co. v. United States, 435 U.S. 21, 25 (1978).

And you can skip the "natural right to work" argument, because it's been rejected:

“But natural rights, so called, are as much subject to taxation as rights of lesser importance. An excise is not limited to vocations or activities that may be prohibited altogether. It is not limited to those that are the outcome of a franchise. It extends to vocations or activities pursued as of common right.” Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 580-1 (1937) (footnote omitted).

labor that congress does not have the enumerated power to regulate.

Whether or not Congress can regulate something is irrelevant to whether Congress can tax something. See the License Tax Cases, 72 U.S. 462, 471 (1866).

And Congress has regulated labor. There are minimum wage laws, child labor laws, the Fair Labor Standards At, the National Labor Relations Act, etc. All constitutional.

[truth]

I am not in the game of personal attacks, but for someone to say someone is illiterate because they misspell a word by not proofreading what they wrote, I guess all students that wrote a paper with misspelled words had note attached to such paper saying they were illiterate. I am sure you have thrown away a few such notes. The most powerful document this country possess is the Constitution of the United States of America. the tenth Amendment states it so clear that the most illiterate of us can see that it says "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." were does it say if its not delegated to the United States they the power to regulate within the several states. look before attacking someone do not read any blogs and be brainwashed read your Constitution and understand what it is saying and the powers granted to each government of this country, and to elaborate on something mentioned in a blog the ninth amendment gave us the people more rights than you think, it say in short any right mentioned shal not be construed to deny or disparage others retained by the people.
so if it wasn't mention does not mean we don't possess it, but it's the other way around for the United States, if its not mention they have no right to legislate to regulate within the states.
please excuse me if IO did misspelled any word, because remember we are all human beings.

[JamesVincent]

please excuse me if IO did misspelled any word, because remember we are all human beings.

Thats what spellcheck is for, but I believe they were speaking of grammar more so then spelling. And since your spouting that your human and can make mistakes, yet you cannot possibly be wrong in this. Hmmmm.... Contradict much? And when you have 100's of court decisions, all the way from trial court to Supreme Court, that state otherwise do you really think that your rantings mean a hill of beans?

[Cpt Banjo]

the tenth Amendment states it so clear that the most illiterate of us can see that it says "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." were does it say if its not delegated to the United States they the power to regulate within the several states. look before attacking someone do not read any blogs and be brainwashed read your Constitution and understand what it is saying and the powers granted to each government of this country

But Congress has been delegated the power to tax in general by Article I, Section 8, Clause 1, and the power to tax incomes without apportionment by the 16th Amendment. The 10th Amendment is therefore irrelevant.

[Famspear]

Dear "truth": Rather than trying to lecture other people about the effect of the Tenth Amendment on the power of Congress to impose a tax, you should perhaps actually study the subject.

From the U.S. Supreme Court decision in Fernandez v. Wiener:

The Tenth Amendment does not operate as a limitation upon the powers, express or implied, delegated to the national government. United States v. Darby, 312 U.S. 100, 123-4. The amendment has clearly placed no restriction upon the power delegated to the national government to lay an excise tax qua tax. Undoubtedly every tax which lays its burden on some and not others may have an incidental regulatory effect. But since that is an inseparable concomitant of the power to tax, the incidental regulatory effect of the tax is embraced within the power to lay it. It has long been settled that an Act of Congress which on its face purports to be an exercise of the taxing power, is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed. In such a case it is not within the province of courts to inquire into the unexpressed purposes or motives which may have moved Congress to exercise a power constitutionally conferred upon it [....]

---from Fernandez v. Wiener, 326 U.S. 340, 66 S. Ct. 178, 45-2 U.S. Tax Cas. (CCH) ¶10,239 (1945).

[LPC]

the tenth Amendment states it so clear that the most illiterate of us can see that it says "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

But Congress has been delegated the power to tax in general by Article I, Section 8, Clause 1, and the power to tax incomes without apportionment by the 16th Amendment. The 10th Amendment is therefore irrelevant.

Right.

Which brings us back to my question:

so look up the meaning of income in supreme court cases, as an excise tax how can such tax be lawful on the labor of a human being.

Why not? Why can't there be an excise on the sale of labor?

[webhick]

This was my favorite part:

...do not read any blogs...

...to elaborate on something mentioned in a blog..

Don't read the blogs! No! Read the blogs!

I really needed that chuckle.

[Dr. Caligari]

"truth,"
Welcome to Quatloos.
May I ask if you had any involvement in the case under discussion on this thread?

[truth]

well i must say i am getting too much attention that is unneccessary. this topic would need a semester to grasp the constitution , the way you present yourself in court, how did the defendants presented themselves in these cited cases. it's all about jursdiction, all who have replied with the concept that the federal government has this all exclusive power, at random pick a subject matter that has nothing to do with interstate commerce/civil rights and seek help from the federal government and i am sure they will let you know that subject matter is not under their jurisdiction, it's a state matter. could all who are stating that wages are taxable income to the regular worker , look up in black laws dictionary 6th edition the definition of "labor". I will not entertain any more blog pertaining to this issue, but i will look forward for the explaination of the black laws definition of "labor." to answer a question i have taken this action to court and gave up my rights by pleading pro se instead of inpropria persona and there is a difference in both pleading.

[Pottapaug1938]

well i must say i am getting too much attention that is unneccessary. this topic would need a semester to grasp the constitution , the way you present yourself in court, how did the defendants presented themselves in these cited cases. it's all about jursdiction, all who have replied with the concept that the federal government has this all exclusive power, at random pick a subject matter that has nothing to do with interstate commerce/civil rights and seek help from the federal government and i am sure they will let you know that subject matter is not under their jurisdiction, it's a state matter. could all who are stating that wages are taxable income to the regular worker , look up in black laws dictionary 6th edition the definition of "labor". I will not entertain any more blog pertaining to this issue, but i will look forward for the explaination of the black laws definition of "labor." to answer a question i have taken this action to court and gave up my rights by pleading pro se instead of inpropria persona and there is a difference in both pleading.

I will only say that if you are relying on the 6th edition of Black's Law Dictionary as your source of legal authority, you are already deeply in trouble. Not only has Black's gone through three newer editions since then, any first year law student can tell you that Black's is not an authority on the law, but only a guide to finding it. ]

You need to concern yourself much more with authoritative appellate court cases.

[Dr. Caligari]

to answer a question i have taken this action to court and gave up my rights by pleading pro se instead of inpropria persona and there is a difference in both pleading.

Nonsense. No difference.

[Gregg]

I'll give you a pass on the spelling, but your (lack of) grammar makes my head hurt.

Really, read it before you post and ask "does that sound funny?" Another hint, 1 thought,1 sentence, with a period and a space after it.