CA10 - Jacobsen (TP argued US only includes territories)

[jcolvin2]

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRENT D. JACOBSEN,
Petitioner - Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
No. 13-9002
(Tax Ct. No. 22536-12)
(United States Tax Court)
ORDER AND JUDGMENT•
Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.

Brent D. Jacobsen, proceeding pro se, appeals the United States Tax Court’s
dismissal of his petition for failure to conform to Tax Ct. R. 34(b), and failure to state
a claim upon which relief can be granted. Exercising jurisdiction under 26 U.S.C.
§ 7482, we affirm.

I. Background

Jacobsen filed a tax return for the 2010 tax year reporting a zero tax liability.
The Commissioner of the Internal Revenue Service determined that Jacobsen omitted
$74,971 in wages from his employer, BD Infusion Therapy Systems, Inc. (BD),
$3 in interest income, and was liable for $371 in tax for premature distributions from
a retirement plan. The Commissioner issued Jacobsen a notice of deficiency, stating
that he had a tax deficiency of $14,196 and imposed an accuracy-related penalty of
$2,691 for substantial underpayment of tax under 26 U.S.C. § 6662(d).

Jacobsen then filed a petition in the Tax Court. He did not dispute the
Commissioner’s deficiency tax determination, tax liability, or penalty asserted
against him. Instead, he alleged, among other things, that BD did not pay him
“wages,” and that he did not work for an “American employer” in the “United States”
because the term “United States,” as defined in 26 U.S.C. § 3121(e)(2), includes only
the named U.S. territories and possessions of the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, and American Samoa. He subsequently filed an “Amended
Petition” largely reiterating the allegations contained in the original petition.

The Commissioner filed a motion to dismiss Jacobsen’s petition for failure to
state a claim upon which relief can be granted. The motion asserted that Jacobsen’s
petition and amended petition failed to comply with Tax Ct. R. 34(b), which requires
clear and concise assignments of error in the determination of deficiency or liability,
raised frivolous and groundless arguments, and failed to allege any justiciable error or facts in support of such errors. The Commissioner also notified Jacobsen that he
would move for sanctions under 26 U.S.C. § 6673 if Jacobsen pursued his frivolous
arguments. Considering the motion, the Tax Court ordered Jacobsen to file a proper
amended petition to comply with Tax Ct. R. 34(b). Jacobsen filed a second amended
petition in which he claimed to withdraw positions in the amended petition that
“could be construed as a violation of [s]ection 6673.” R., Doc. 7, at 2. He also
alleged that he was not involved in any revenue taxable activities, that the
Commissioner erred in determining that he was subject to federal income tax, and
that the federal income tax is an excise tax on privileged activities. He also filed an
objection to the Commissioner’s motion to dismiss. The Commissioner then moved
for sanctions under § 6673(a).

The Tax Court entered an order of dismissal and decision. It concluded
Jacobsen’s petition failed to comply with Tax Ct. R. 34 because it neither assigned
error nor alleged facts in support of any justiciable claim. It dismissed the petition
for failure to state a claim upon which relief can be granted, and sanctioned Jacobsen
in the amount of $1,000 for making frivolous arguments. This appeal followed.

II. Discussion

“We review de novo the Tax Court’s dismissals for failure to state a claim and
apply the same standard as would a district court in the first instance.” Fox v.
Comm’r, 969 F.2d 951, 952 (10th Cir. 1992). Accordingly, we review factual issues
under a clearly erroneous standard and legal questions de novo. Lewis v. Comm’r,
523 F.3d 1272, 1274 (10th Cir. 2008). We review Tax Court sanctions for abuse of
discretion. Id.

Because Jacobsen proceeds pro se, we construe his pleadings liberally. See
Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). As we understand
Jacobsen’s brief, he largely does not challenge the Tax Court’s finding of a
deficiency but instead challenges the Tax Court’s imposition of sanctions, claiming
that there is insufficient evidence that his second amended petition is frivolous or
groundless. See Appellant’s Br. at 2‒3. He does so by arguing that the Tax Court’s
citation to case law in its order does not establish the frivolousness of his amended
petition. We reject Jacobsen’s challenge.

Under § 6673(a)(1), the Tax Court is authorized to impose sanctions up to
$25,000 when a taxpayer’s suit is instituted primarily for delay or the taxpayer’s
position is frivolous or groundless. The Tax Court considered Jacobsen’s second
amended petition and concluded that it contained “nothing but frivolous and
groundless arguments.” R., Doc. 13, at 2. And in imposing sanctions, it determined
that Jacobsen’s argument concerning the “alleged nontaxable status of his wages is
frivolous and groundless.” Id. at 3.

The Tax Court did not expressly enumerate and reject Jacobsen’s specific
claims. See, e.g., Crain v. Comm’r, 737 F.2d 1417, 1417 (5th Cir. 1984) (finding
there is “no need to refute [similarly frivolous] arguments with somber reasoning and
copious citation of precedent; to do so might suggest that these arguments have some
colorable merit”). But it is evident that Jacobsen’s claims were properly dismissed.
Jacobsen’s position in his second amended petition that federal income tax is an
excise tax imposed only on privileged activities has been rejected. See Parker v.
Comm’r, 724 F.2d 469, 471‒72 (5th Cir. 1984) (refuting allegation that the income
tax is an excise tax applicable only against special privileges and finding Congress
empowered to levy income tax against any source of income). Likewise, Jacobsen’s
claim that he has not been involved in any revenue taxable activities fails. As the
Tax Court found, Jacobsen did not deny receiving wages as determined by his
employer, and is a taxpayer obligated to pay federal income tax on his wages. See
R., Doc. 13, at 2. Wages are properly taxable income. See Charczuk v. Comm’r,
771 F.2d 471, 472‒73 (10th Cir. 1985); see also United States v. Sloan, 939 F.2d
499, 501 (7th Cir. 1991) (“All individuals . . . must pay federal income tax on their
wages, regardless of whether they requested, obtained or exercised any privilege
from the federal government.” (internal quotation marks omitted)).

Accordingly, we agree with the Tax Court that Jacobsen’s petition is frivolous
and groundless. Arguments similar to Jacobsen’s have previously been rejected. We
therefore find no abuse of discretion in the Tax Court’s imposition of sanctions.1

Jacobsen also argues summarily that the Tax Court lacked subject-matter
jurisdiction under the Declaratory Judgment Act, see 28 U.S.C. § 2201, and the
Anti-Injunction Act, see 26 U.S.C. § 7421(a), because there is no claim or
controversy within the Tax Court’s jurisdiction to adjudicate. See Appellant’s Br.
at 5‒6. Jacobsen’s claim is meritless. Although federal courts lack jurisdiction under
the Declaratory Judgment Act to issue declaratory relief with respect to federal taxes,
Jacobsen does not request such relief and, therefore, the Act does not apply.

Similarly, the Anti-Injunction Act, which prohibits suits for the purpose of
restraining the assessment or collection of any tax, does not apply.
To the extent Jacobsen otherwise challenges the dismissal of his petition, we
have reviewed the petition and conclude, as did the Tax Court, that it contains no
valid challenges to the notice of deficiency and fails to specifically identify any
errors related to the determination of his income tax deficiencies or liabilities.

III. Conclusion

The judgment of the United States Tax Court is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge




• After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We further note that Jacobsen’s claim in his original petition and first amended
petition that the term “United States,” as defined in 26 U.S.C. § 3121(e)(2), includes
only Puerto Rico, the Virgin Islands, Guam, and American Samoa, has also been
refuted. See Wnuck v. Comm’r, 136 T.C. 498, 506‒07 (2011).

[fortinbras]

because the term “United States,” as defined in 26 U.S.C. § 3121(e)(2), includes only
the named U.S. territories and possessions of the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, and American Samoa. He subseq

His error is a sort of forced error, powered by wishful thinking. The section that refers to Puerto Rico, etc., does not say "only", it merely says that the US "includes" those territories. Elsewhere in the Tax Code the word "include" is explicitly defined to mean in addition to the usual meaning of something; so "includes" in the Tax Code is a word of expansion -- when the Tax Code wants to exclude stuff it uses the phrase "includes only".

[LPC]

Jacobsen filed a second amended petition in which he claimed to withdraw positions in the amended petition that “could be construed as a violation of [s]ection 6673.” R., Doc. 7, at 2. He also alleged that he was not involved in any revenue taxable activities, that the Commissioner erred in determining that he was subject to federal income tax, and that the federal income tax is an excise tax on privileged activities. [...] The Commissioner then moved for sanctions under § 6673(a).

Yes, as the Tax Court observed in Wnuck v. Commissioner, 136 T.C. 498 (2011), the number of frivolous arguments is unlimited.

[Burnaby49]

because the term “United States,” as defined in 26 U.S.C. § 3121(e)(2), includes only
the named U.S. territories and possessions of the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, and American Samoa. He subseq

His error is a sort of forced error, powered by wishful thinking. The section that refers to Puerto Rico, etc., does not say "only", it merely says that the US "includes" those territories. Elsewhere in the Tax Code the word "include" is explicitly defined to mean in addition to the usual meaning of something; so "includes" in the Tax Code is a word of expansion -- when the Tax Code wants to exclude stuff it uses the phrase "includes only".

Canadian tax protesters pull the same crap. At the Charles Norman Holmes hearing Holmes argued that since the Canadian Income Tax Act states that the word "person" includes corporations only corporations are persons. When the judge told him "includes" in legal interpretation is a term of expansion Charles told the judge he was wrong. Same with a gang I observed at a seminar given by Chief Rock Sino General where one woman shared her legal wisdom with us by telling us that since the British Columbia Motor Vehicles Act says that an accident "includes" intentional collision then only intentional collisions are accidents under the act. I think her point was that she'd been hit with a big increase in car insurance for being at fault in an accident but this was clearly an illegal money grab. Since she had not deliberately hit the other car there had been no accident as defined in the Act so she couldn't be found at fault. This unique statutory interpretation seemed to have worked as well for her as it did for Holmes.

[Jameson3171]

Once again another person who did not present any physical evidence that was specifically in clearly support in his argument.

[Famspear]

Once again another person who did not present any physical evidence that was specifically in clearly support in his argument.

His argument was essentially that the term “United States,” as defined in 26 U.S.C. § 3121(e)(2), includes only the named U.S. territories and possessions. He was wrong, as a matter of law.

Further, his argument is an argument about what the law is, not an argument about what the facts are. So, to this extent, this is not a question of his failure to present "evidence" -- whether physical or non-physical. With a few exceptions, the term "evidence" relates to how one proves questions of fact, not to how one prevails on questions of law.

[Hyrion]

So, to this extent, this is not a question of his failure to present "evidence" -- whether physical or non-physical.

I don't know about you Famspear.... but I'd love to see Jameson3171 bring the Islands of the American Samoa, Virgin Islands, Guam and Puerto Rico physically into the Court then argue that since the IRS did not bring the physical 50 States into Court they can't possibly be part of the definition.

And Jameson3171: you must bring the actual islands into Court. Any facsimile will be considered a failed attempt to "present physical evidence".

[Fmotlgroupie]

So, to this extent, this is not a question of his failure to present "evidence" -- whether physical or non-physical.

I don't know about you Famspear.... but I'd love to see Jameson3171 bring the Islands of the American Samoa, Virgin Islands, Guam and Puerto Rico physically into the Court then argue that since the IRS did not bring the physical 50 States into Court they can't possibly be part of the definition.

And Jameson3171: you must bring the actual islands into Court. Any facsimile will be considered a failed attempt to "present physical evidence".

Yes, but can he prove the continuity of the physical evidence? Were the territories secured in evidence locker or something, or is there a chance they were interfered with by somebody?

[fortinbras]

For more than a decade I have seen this silliness about the word "includes", depending on the kind of case - what the "United States" means, what "income" or "employee" means, etc.
The US Tax Code, 26 USC 7701(c), the Judicial Code, 28 USC 3003(a)(1), the banking code, 12 USC 1813(t), the bankruptcy code, 11 USC 102(3), and some other parts of the US Code explicitly define "includes" & "including" to be expansive and embody the usual or obvious items PLUS the possibly ambiguous or unusual items that some provisions might mention. For example, when the Tax Code says that "employees" include directors and govt officials, it mentions them because a lot of people would not think that members of a board of directors or civil servants fall within the definition of "employees" so the Code makes clear that, for the purposes of the tax laws, they do - in addition to the people whom everyone normally thinks of as an employee. And when a provision says that "United States includes Puerto Rico and Guam", it's because a lot of people don't ordinarily think of those places as being part of the US and so the provision makes clear that this law applies there as well in the 50 States and DC. In the US Code when the meaning is intended to be exclusive or exhaustive, the law will actually use the word "only" and say that "so-and-so includes only x, y, and z".

But the SovCits first quote the law about "includes this, that, and the other" and then switch books to some dictionary that offers (almost invariably among alternative meanings, and sometimes not even the first example) the defines "including" as a term of limitation rather than explansion. They act surprised when told that "including" is defined in the same title of the Code that they started with.

[Gregg]

Once again another person who did not present any physical evidence that was specifically in clearly support in his argument.

Physical evidence?



Physical Evidence is most often the fingerprint left at the crime scene, the bullet casings, the get away car with matching paint chips...you know, PHYSICAL. Evidence.

[Gregg]

You can't convince them, if you could prove that "includes" doesn't mean "includes only" then you have to restart the argument with the definition of "wages" and then next "United States" and then "income" ad infinitum.

The only way to end the debate is to either convince them that there is no grand conspiracy to trick them into paying taxes instead of Congress just passing the proper laws to impose a tax without any tricks, or give them a few years to study it in the law library of a federal prison. The latter doesn't always work, of course. The former is the hardest of all things, to change their beliefs.

[Gregg]

It just occurred to me that, by this kind of twisted belief, that the two most effective anti-tax gurus I can think of are He Who Shall Not Be Named here and PAM, because they are the two I can recall that do exactly as they preach, and have never been to prison for it.

[Hyrion]

Yes, but can he prove the continuity of the physical evidence? Were the territories secured in evidence locker or something, or is there a chance they were interfered with by somebody?

You raise a good point. Someone may have transitioned one of the islands to one of the great lakes placing it either within the Jurisdiction of the 50 United States or within the Jurisdiction of Canada. Boy.... would that confuse the situation regarding where the taxes applied....