IRS Classifying Tax Protest Against War As Frivolous?

[The Observer]

Not sure that I can remember someone protesting US mlitary policy/involvement by not paying their taxes getting hit with a frivpen. Apparently Ms. Boardman has gone out of her way to get noticed but nothing here to show that she actually has been frivpenned.

ELIZABETH BOARDMAN,
Plaintiff-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Defendant-Appellee.

Release Date: MARCH 12, 2015

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MEMORANDUM/*/

Appeal from the United States District Court
for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Submitted March 10, 2015/**/
San Francisco, California

Before: BYBEE, CALLAHAN, and OWENS, Circuit Judges.

Plaintiff-Appellant Elizabeth Boardman appeals the district court's dismissal of her complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The complaint asserts claims under the Free Exercise Clause and the Religious Freedom Restoration Act of 1993, 42 U.S.C. section 2000bb et seq., and seeks an injunction ordering the Internal Revenue Service to "put into operation procedures for processing disputes, claims, collections and litigation adverse to taxpayers who refuse to pay taxes because of conscience or religion that are respectful, efficient, transparent and minimally burdensome and that lead to Tax Court determinations upon taxpayer request." We have jurisdiction under 28 U.S.C. section 1291, and we affirm.

The district court correctly determined that the complaint is barred by the Anti-Injunction Act, 26 U.S.C. section 7421(a). The complaint seeks an injunction that would enjoin the government from following certain tax collection procedures -- in particular, procedures designed to allow the government to expeditiously resolve taxpayer claims lacking legal merit -- and therefore falls within the scope of the Anti-Injunction Act. See Hansen v. Dep't of Treasury, 528 F.3d 597, 601 (9th Cir. 2007).

Accordingly, the Anti-Injunction Act precludes federal jurisdiction here unless Appellant can satisfy the judicially created exception to the Act by demonstrating (1) irreparable injury if her case is not heard, and (2) certainty of success on the merits. Bob Jones Univ. v. Simon, 416 U.S. 725, 737 (1974). Appellant fails to satisfy either requirement. Appellant has a legal remedy in the form of a suit for refund and thus will suffer no irreparable injury. Hansen, 528 F.3d at 601-02. Appellant also has not shown that she is certain to succeed on the merits of her claim that the government's listing of war tax resistance as a "frivolous" legal position for purposes of 26 U.S.C. section 6702 connotes discouragement of religion or otherwise violates her free exercise rights. See Jenney v. United States, 755 F.2d 1384, 1387 (9th Cir. 1985) (holding that a taxpayer's attempt to claim a war tax deduction is frivolous within the meaning of 26 U.S.C. section 6702 because "[t]here is no provision in the Internal Revenue Code for a war tax deduction or credit, and taxpayers have no constitutional right to refuse to pay federal taxes because of their anti-war sentiments").

Thus, the district court properly granted the Commissioner's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). 1

AFFIRMED.

//*//

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.


//**//

The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).


FOOTNOTES:

/1/ Because we conclude that the district court correctly dismissed the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we need not decide whether the complaint was also properly dismissed under Federal Rule of Civil Procedure 12(b)(6).

[fortinbras]

The IRS (and the courts) have always treated tax dodging based on opposition to a war as frivolous or even fraudulent. There were plenty of such cases during the Vietnam War.

[The Observer]

The IRS (and the courts) have always treated tax dodging based on opposition to a war as frivolous or even fraudulent.

Where a frivpen was assessed?

[Dr. Caligari]

Where a frivpen was assessed?

The Code didn't have the frivolous return penalty during the Vietnam War, but war tax protesters did get hit with other penalties.

[LPC]

The position that “the First Amendment permits a taxpayer to refuse to pay taxes based on religious or moral beliefs” was identified by the IRS as “frivolous” in Notice 2007-30, 2007-14 I.R.B. 883 (4/2/2007).

Not too long ago, I heard a Friend (i.e., a Quaker) say that she was threatened with frivolous filing penalties for continuing to affirm her religious objection to paying taxes to support wars. So the case cited above might not be unusual, and the IRS may be uniformly applying frivolous filing and submission penalties against people with sincere religious beliefs, as well as tax nuts.