US v. Hendrickson-- status of appeal?

[ASITStands]

Not on PACER. Appellate briefs are seldom available on PACER except in the instances where they are e-mailed.

At least that's my experience. Maybe I just don't pay enough. Wait! That can't be true. Between Westlaw and PACER I need to do some work.

[Joey Smith]

Pacer's docket sheet says that the USA's brief was just filed yesterday, but there is no way to obtain the brief online. It is not on Westlaw yet, but I keep looking.

[Nikki]

A preview of the decision in Pete's appeal:

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAMES A. SPITZER, Defendant-Appellant.
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 06-00479-CV-ORL-22JGG
Appeal from the United States District Court for the Middle District of Florida
(August 21, 2007)
Before TJOFLAT, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
James Spitzer, proceeding pro se, appeals from the district court's grant of summary judgment for the Government in an action to recover an erroneously issued tax refund to him in the amount of $16,614. The crux of Spitzer's position is that the $86,493.00 he earned from employment in 2004 were not "wages," and therefore were not taxable. In his brief, the appellant contends that the district court erred in (1) denying his motion to dismiss the Government's complaint, under Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and his motion to dismiss the complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim for relief, and (2) granting the Government's motion for summary judgment and denying his cross-motion for summary judgment. \1\ We find no merit in Spitzer's appeal and therefore affirm the district court's judgment. We also grant the Government's motion for sanctions under Federal Rule of Appellate Procedure 38.

The Rule 12(b)(1) motion to dismiss
"Attacks on subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) come in two forms," a facial attack and a factual attack. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29. (11th Cir. 1990). "A 'facial attack' . . . requires the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Id. at 1529 (citation omitted). A "'[f]actual attack . . . challenge[s] the existence of subject matter jurisdiction . . . irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. (citation omitted). We distinguished these two types of attacks as follows:

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion -- the court must consider the allegations of the complaint to be true. But when the attack is factual, the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction -- its very power to hear the case -- there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Id. (citation omitted).

When the United States erroneously issues a refund check to a taxpayer, the government may bring a civil action in the district court to recover the refund. See 26 U.S.C. § 7405(b) (providing the government with a civil cause of action to recover taxes "erroneously refunded"); 26 U.S.C. § 7402 ("The district courts of the United States at the instance of the United States shall have such jurisdiction . . . to render such judgments and decrees as may be necessary or appropriate for the enforcement of the internal revenue laws"); 28 U.S.C. § 1340 ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue . . ."); 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction over all civil actions arising under the . . . laws[] . . . of the United States"). This jurisdiction exists regardless of whether the refund was issued mistakenly or was induced by fraud or other material misrepresentations. See 26 U.S.C. § 7405(b).

Considering Spitzer's Rule 21(b)(1) motion as a facial attack on the sufficiency of the Government's complaint, we hold, as the district court correctly held, that the complaint on its face alleged a proper basis of subject matter jurisdiction -- a claim to recover an erroneous refund. The complaint fails a factual attack because Spitzer admitted in his affidavit in support of his motion to dismiss that he had received "private-sector earnings" from Rollins College for work that he performed in 2004, and that the college, an independent third-party, had considered these payments to be taxable income. In sum, the district court properly held that it had subject matter jurisdiction over the controversy. \2\

The Rule 12(b)(6) motion to dismiss
A complaint withstands a motion to dismiss for failure to state a claim if it appears that the facts support the claim for relief. The complaint explicitly alleged that (1) Spitzer filed a tax return indicating that he did not have any tax liability in 2004; (2) the government refunded to Spitzer $16,936 based on these representations; and (3) Spitzer actually owed federal incomes for the 2004 tax year in the amount of $16,614. Accepting these allegations as true, as we must, the Government presented a viable claim, pursuant to 26 U.S.C. § 7405(b), for the recovery of an erroneously issued tax refund. Thus, the district court properly denied Spitzer's Rule 12(b)(6) motion to dismiss.

The summary judgment motions
We review a district court's grant or denial of summary judgment de novo, using the same legal standard as the district court. Holloman v. Mail-Well Corp, 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is appropriate when the evidence, viewed in the light most favorable to the non-moving party, presents no genuine issue of material fact and compels judgment as a matter of law in favor of the moving party. Id.

"If the party seeking summary judgment meets the initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the non-moving party to come forward with sufficient evidence to rebut this showing with affidavits or other relevant and admissible evidence." Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). "A nonmoving party, opposing a motion for summary judgment supported by affidavits cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial." Id. "The evidence presented cannot consist of conclusory allegations or legal conclusions." Id.

The Constitution grants Congress the power to tax "incomes, from whatever source derived. . . ." U.S. CONST. amend. XVI. Exercising this power, Congress has defined "gross income," for taxation purposes, as "all income from whatever source derived, including (but not limited to) . . . (1) Compensation for services, including fees, commissions, fringe benefits, and similar items[.]" 26 U.S.C. § 61(a).

To prevail in an action brought under 26 U.S.C. § 7405(b), the government must prove that: (1) a refund of a sum certain was made to a taxpayer; (2) the tax refund was erroneously issued; and (3) the lawsuit to recover the erroneously issued taxes was timely filed. See 26 U.S.C. § 7405(b); see also United States v. Commercial Nat'l Bank of Peoria, 874 F.2d 1165, 1169 (7th Cir. 1989). The government ordinarily has two years after making an erroneous refund to file suit to recover the refund under § 7405. See 26 U.S.C. § 6532(b).

The undisputed evidence established that the government refunded to Spitzer $16,936 for the 2004 tax year. The undisputed evidence also established that the present lawsuit was filed on April 10, 2006, within two years of the contested refund. Accordingly, the sole issue for summary judgment purposes was whether the tax refund was erroneously issued. Spitzer failed to demonstrate a genuine issue of material fact disputing the declaration of Shauna Henline, Senior Technical Coordinator for the Frivolous Return Program for the Internal Revenue Service, which was based on Spitzer's incorrect statements in his self-prepared tax return that he had no wages or gross income for the year 2004, that the $16,614 refund was erroneously issued. Spitzer did submit as part of his summary judgment motion (and his brief in opposition to the Government's summary judgment motion) a copy of his self-prepared 2004 tax return, which purported to show that he had no tax liability for that tax year, as well as two personal affidavits stating the payments from Rollins College in 2004 were non-taxable earnings, and not taxable wages or gross income. This "evidence" -- which consisted of a legal conclusion that the payments from Rollins College were non-taxable "private-sector earnings," and not taxable wages or gross income -- was plainly insufficient to defeat the Government's motion. Given this state of the record, the court committed no error in granting the Government's motion for summary judgment and denying Spitzer's cross-motion.

The motion for sanctions under Rule 38
As Spitzer's arguments on appeal are patently frivolous and contrary to long-established authority, we grant the Government's motion for sanctions as to entitlement. We direct the Government to file within fourteen days of the date of this opinion a supplement to its motion, which sets forth its costs, the time records of its attorneys, and appropriate affidavits establishing reasonable rates for these attorneys. Spitzer may file a response to this supplement within seven days from the date is he served with the Government's supplement. We will then issue a separate order resolving the motion as to amount.
AFFIRMED; MOTION FOR SANCTIONS GRANTED.

FOOTNOTES

\1\ Liberally construing his appellate brief, Spitzer also argues that his constitutional procedural due process rights were plainly violated by the government's failure to notify him of a claimed deficiency prior to filing the present lawsuit. Spitzer failed to present this argument to the district court. Since this is not an "exceptional" civil case where the error, if any, was "so fundamental that it may have resulted in a miscarriage of justice," we do not address this argument. See S.E.C. v. Diversified Corp. Consulting Group, 378 F.3d 1219, 1227 (11th Cir. 2004).

\2\ Spitzer argues in his brief that the Government lacked standing to sue because it brought the lawsuit in the name of the "United States of America" rather than the "United States." The argument is patently frivolous and merits no discussion.

END OF FOOTNOTES

NOTE: The highlighted section is the magical "out" for the LoserHeads. Clearly if Spitzer hadn't argued such a frivolous issue, he wouldn't ahve lost.

[Dezcad]

A preview of the decision in Pete's appeal:

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAMES A. SPITZER, Defendant-Appellant.
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 06-00479-CV-ORL-22JGG
Appeal from the United States District Court for the Middle District of Florida
(August 21, 2007)
Before TJOFLAT, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
James Spitzer, proceeding pro se, appeals from the district court's grant of summary judgment for the Government in an action to recover an erroneously issued tax refund to him in the amount of $16,614. The crux of Spitzer's position is that the $86,493.00 he earned from employment in 2004 were not "wages," and therefore were not taxable. In his brief, the appellant contends that the district court erred in (1) denying his motion to dismiss the Government's complaint, under Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and his motion to dismiss the complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim for relief, and (2) granting the Government's motion for summary judgment and denying his cross-motion for summary judgment. \1\ We find no merit in Spitzer's appeal and therefore affirm the district court's judgment. We also grant the Government's motion for sanctions under Federal Rule of Appellate Procedure 38.

I'm sure the page at LH about James Spitzer won't be updated.

http://www.losthorizons.com/tax/CanAnyoneSay.htm

[.]

No sanctions were meted out.

Actually, he was sanctioned. The amount will be determined in due course.

The motion for sanctions under Rule 38

As Spitzer's arguments on appeal are patently frivolous and contrary to long-established authority, we grant the Government's motion for sanctions as to entitlement. We direct the Government to file within fourteen days of the date of this opinion a supplement to its motion, which sets forth its costs, the time records of its attorneys, and appropriate affidavits establishing reasonable rates for these attorneys. Spitzer may file a response to this supplement within seven days from the date is he served with the Government's supplement. We will then issue a separate order resolving the motion as to amount.

AFFIRMED; MOTION FOR SANCTIONS GRANTED.

[Dr. Caligari]

I just posted the full taxt of the Spitzer decision on the LH forum. Let's see how lon it stays up.

[Dezcad]

I just posted the full text of the Spitzer decision on the LH forum. Let's see how long it stays up.

Well done. I was amused at the "ostrich head in the sand" reply by JJB:

While this decision is significant in itself, it merely attaches to the extant train of decisions which misrepresent CtC assertions. At no time did Spitzer's position involve admitting his earnings were from statutory "employment".

The supposed "long-established authority" for sanctions is also notably lacking.

The fact that Rollins College and Shauna Henline might mistakenly believe such earnings to be income does not change the facts that the earnings are not described by the factual definitions of "wages" in the Code and have not been competently alleged to be income for any other factual reason than by virtue of those definitions.

We wish justice for Jim as he considers his next steps.

I wish justice for Jim as well, it is just that my opinion of justice for Jim, I am sure, is different than JJB's. Unless of course, JJB thinks he should be criminally prosecuted also.

[Dezcad]

No sanctions were meted out.

Actually, he was sanctioned. The amount will be determined in due course.

The motion for sanctions under Rule 38

As Spitzer's arguments on appeal are patently frivolous and contrary to long-established authority, we grant the Government's motion for sanctions as to entitlement. We direct the Government to file within fourteen days of the date of this opinion a supplement to its motion, which sets forth its costs, the time records of its attorneys, and appropriate affidavits establishing reasonable rates for these attorneys. Spitzer may file a response to this supplement within seven days from the date is he served with the Government's supplement. We will then issue a separate order resolving the motion as to amount.

AFFIRMED; MOTION FOR SANCTIONS GRANTED.

Spitzer was also ordered to pay over $16K in the attorney's fees to the US at the District Court level (which is in addition to the refund and the fees owed at the appellate level). See "here" for that order.

So Spitzer is about to owe triple the amount of his "refund" to the US. Hell, isn't it?

[Dr. Caligari]

Amazing to see the contortions they are going through on that thread.

[Famspear]

Caligari wrote:

Amazing to see the contortions they are going through on that thread.

It is pretty funny -- like watch five or ten people in a small room trying desperately to avoid noticing a big, smelly, noisy elephant in the corner of the room.

[Dezcad]

Amazing to see the contortions they are going through on that thread.

Have you seen the incessant posts by RFuselier, better known as Richard Fuselier, the proud owner of a District Court injunction, and numerous denials of petition for cert and habeas corpus by the SCOTUS.

How long before RFuselier is banned? JJB already deleted some of his numerous posts.

Sometimes reality is stranger than fiction. I couldn't make up some of the stuff he posts.

[LPC]

I was amused at the "ostrich head in the sand" reply by JJB:

[snip]The fact that Rollins College and Shauna Henline might mistakenly believe such earnings to be income does not change the facts that the earnings are not described by the factual definitions of "wages" in the Code and have not been competently alleged to be income for any other factual reason than by virtue of those definitions.

As with most of Bulten's blather, it's difficult to determine exactly what he is trying to say here, but this particular piece of blather seems to be consistent with what seems to be a recurring attempt within the "CtC method" to change legal issues into factual issues.

So, for example, CtCers refer to their tax returns reporting zero "wages" as "testimony" that the IRS must rebut.

At times, their positions seem positively schizophrenic, as they simultaneously claim that their position that they have no "wages" is "factual" while the reports of their employers (and the IRS) that they did receive wages are "legal opinions" that the employers (and IRS) are not competent to issue.

This confusion between factual and legal conclusion was squarely addressed in the Spitzer case:

Spitzer did submit as part of his summary judgment motion (and his brief in opposition to the Government's summary judgment motion) a copy of his self-prepared 2004 tax return, which purported to show that he had no tax liability for that tax year, as well as two personal affidavits stating the payments from Rollins College in 2004 were non-taxable earnings, and not taxable wages or gross income. This "evidence" -- which consisted of a legal conclusion that the payments from Rollins College were non-taxable "private-sector earnings," and not taxable wages or gross income -- was plainly insufficient to defeat the Government's motion.

It's entirely possible that Bulten et al. are simply emotionally or intellectual incapable of understanding the idiocy (and dishonesty) of their positions.

[Quixote]

At no time did Spitzer's position involve admitting his earnings were from statutory "employment".

JB usually dismisses negative court decisions by asserting, with or without support, that the taxpayer admitted to having received wages. Here he seems to be dismissing the result because the taxpayer did not admit to having received wages.

[Quixote]

BiggDooger:

Noticeably absent from Spitzer's " evidence" is ANY EVIDENCE WHATSOEVER that IRS proceeded from without an internal revenue district, and thus violated its procedure in arriving at an assessment.

Apparently BD is not aware that the IRS reorganization under the '98 act did away with internal revenue districts. Spitzer must not be aware of it either, or surely he would have raised BD's rock solid procedural violation argument.

[ASITStands]

Caligari wrote:

Amazing to see the contortions they are going through on that thread.

It is pretty funny -- like watch five or ten people in a small room trying desperately to avoid noticing a big, smelly, noisy elephant in the corner of the room.

Reading them in sequence, it was like the CtC theory was simply falling apart. The one called 'BiggDooger' certainly did his part to tell them they were wrong.

And, yes, I've been watching the idiocy posted by 'Rfuselier.'

[wserra]

And, yes, I've been watching the idiocy posted by 'Rfuselier.'

Those of you with PACER access - try running a search on this chowderhead. He files all over the place, and usually winds up with a final docket entry like this one (from 98-mc-00001, LAMD):

ORDER denying [3-1] motion for Leave to File Amended Motion for Leave. Any further attempts by the ptlfs to have this court review this matter shall result in sanctions being imposed by the Court (signed by Judge Frank J. Polozola ), issued notices

or this one (from 96-mc-00037, LAMD):

ORDER denying [1-1] motion for Leave to File Complaint for Writ of Execution ... pltf does not have leave to file a complaint

or this one (from 00-cv-00148, LAWD):

MEMORANDUM ORDER denying [2-1] motion for judgment as a matter of law. FURTHER ORDERED that plaintiffs' action be DISMISSED WITH PREJUDICE as frivolous. FURTHER ORDERED that the Clerk of Court accept no future pleadings for filing by these plaintiffs without prior review by the court. FURTHER ORDERED that any future frivolous or fraudulent filings by these plaintiffs be subject to Rule 11 sanctions. (signed by Judge James T Trimble Jr)

The injunction Dezcad mentioned is here, and a complaint of Fuselier's, incoherent even by Hendrickson standards, is here.

Enjoy.

[notorial dissent]

Rambling and incoherent is a kind way of putting it. Out and out gibberish would be more to the point.

I, in my ignorance, was unaware that there was a Common Law Court in the United States, and what difference it would it make if there were is beyond me.

Why he thinks the Court of Federal Claims can do something for him that the DC's can't is also a mystery. I didn't think they could hear tax matters he is going on about.

I do like the part about the constitution restraining him from getting the justice he seeks, and he wants it set aside I guess.

I am curious about where he comes up with the jurisdictional immunity bit. I don't remember seeing that one before.

I like the bit where they couldn't get the courts to do what they wanted, so they reconstituted their own country and court to do it and issued their own decrees and judgements. Reminds of several other nut jobs.

I still am confused about what he thinks a Writ of Habeas Corpus is going to do for him or have to do with this function.

I can see why he has been barred from filing. This stuff if barely comprehensible, and of no legal value.

I truly do feel sorry for the courts having to read and deal with this nonsense.

[ASITStands]

In the complaint for 00-cv-00148, LAWD, he provides a copy of a declaration filed in the 'Common Law Court of the United States of America' in Lafayette, LA.

Say, isn't that where Tommy Cryer practiced?

Anyway, from the things he's said on Lost Horizons, it would appear he's attempting to use common law principles to file documents abrogating his United States citizenship and declaring his State citizenship.

Then, knowing the district and appellate courts will not hear his arguments, take them directly to the S.Ct. by way of a writ of habeus corpus.

Doesn't make sense, I know, but that's about the best I can understand what he's trying to do. That, and trying to take every tax statute he can find and litigate a stay on collection.

That seems to be his big issue. Litigate a stay on collection before or while you're litigating your tax claim [whatever that is]. In Fuselier's case, he thinks he's litigating his proper state citizenship.

It seems all to be a twist on the territorial and citizenship arguments. He thinks he's reestablishing common law.

He's not alone. The injunctive action is the United States v. Richard A. Fuselier and Richard J. Ortt.

[webhick]

Amazing to see the contortions they are going through on that thread.

I like it when you use the word "contortions" to refer to TPs trying to explain court decisions that aren't in their favor.

It makes me think of zombie movies where the zombies spasmodically twitch while stumbling towards their victims.

Or you know when little kids are possessed or overdue for a nap how their heads spin around and they throw random objects like their fingers, eyeballs, noses, or just good old-fashioned snot at you and then they projectile puke small animals, spaghetti, and reefer in your general direction? Yeah, that's the second thing that comes to mind.

Wow, and that's kind of what they're doing on LH. They're all atwitter, but in a Richard Simmons on crack with a correspondence school law "certificate" kind of way.

[notorial dissent]

Wow, and that's kind of what they're doing on LH. They're all atwitter, but in a Richard Simmons on crack with a correspondence school law "certificate" kind of way.

How rude....... and so very true.