TP Fails to convince Tenth Circuit Court of Appeals

[jcolvin2]

FILED
United States Court of Appeals
Tenth Circuit
October 23, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JEFFREY T. MARTIN,
Petitioner-Appellant,
v. No. 08-9007
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
(Docket No. 25909-07)
(United States Tax Court)
ORDER AND JUDGMENT*
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.

Jeffrey T. Martin (“Martin”), acting pro se, appeals the United States Tax
Court’s dismissal of his petition. The Tax Court dismissed the petition for failure
to conform to Tax Ct. R. 34(b)(4), (5) and failure to state a claim upon which
relief can be granted. We have jurisdiction pursuant to 26 U.S.C. § 7482 and
affirm.

I

In 2007, the Commissioner of the Internal Revenue Service (“IRS”)
notified Martin by letter that he had a tax deficiency of $7203 for the 2000 tax
year and was subject to penalties totaling $1066.85 under 26 U.S.C. §§
6651(a)(1), (2). Martin filed a petition in the Tax Court to contest this
determination. Martin asserted that he was neither involved in interstate
commerce nor an employee of the federal government, and that the IRS failed to
provide a sufficient legal basis for taxing him. Although Martin did not challenge
or address the specific calculations of his tax deficiency, Martin requested the
Tax Court reduce his deficiency to zero dollars.

The Commissioner filed a motion to dismiss Martin’s petition for failure to
state a claim upon which relief can be granted. This motion noted that the
petition did not allege any facts regarding the tax deficiency at issue for the 2000
tax year. Considering this motion, the Tax Court ordered Martin to file an
amended petition that contained specific challenges to the deficiency calculations
and to allege the necessary, related facts. The Tax Court also set a hearing for the
motion to dismiss to be held in February 2008 in Washington, D.C.
Martin filed an amended petition. The amended petition did not directly
challenge the deficiency calculation or allege any errors or facts related to those
calculations. Instead, the amended petition incorporated the original petition by
reference, asserted that the Commissioner bears the burden of proof at trial, and
requested his tax liability be reduced to zero dollars.

Additionally, Martin filed a response brief opposing the Commissioner’s
motion to dismiss. Martin argued that: (1) opposing counsel lacked standing
because counsel did not prove that he took an oath to uphold the Constitution of
the United States; and (2) the Commissioner has the burden of proof. Martin did
not appear at the hearing regarding the motion to dismiss. The Tax Court granted
the motion to dismiss and found that Martin owed a tax deficiency in the amount
of $7203 and was subject to additional amounts under 26 U.S.C. §§ 6651(a)(1),
(2).

II

On appeal, Martin argues that the Commissioner and the Tax Court refused
to identify the legal basis for his tax deficiency. Martin also contends that the
Commissioner failed to establish that the “gains of his own labor were received
from a federal venue.” Appt. Br. at 6. Martin challenges the Tax Court’s
decision to conduct the hearing regarding the motion to dismiss in Washington,
D.C. Lastly, Martin accuses the Tax Court, and possibly this court, of treason.
The Commissioner responds that the Tax Court correctly dismissed
Martin’s petition for failure to state a claim upon which relief could be granted.

The Commissioner asserts that the petition did not satisfy the requirements of Tax
Ct. R. 34(b), noting “nstead of raising a justiciable claim of error in the
Commissioner’s determination, [Martin] challenged the Commissioner’s authority
to collect income taxes from him at all.” Appe. Br. at 10.

III

We review de novo the Tax Court’s dismissal for failure to state a claim.
Fox v. Comm’r, 969 F.2d 951, 952 (10th Cir. 1992). Accordingly, we apply the
same standard as a district court would in the first instance. Id. (citing 26 U.S.C.
§ 7482(a)). Because Martin proceeds pro se, we construe his pleadings liberally.
See Haines v. Kerner, 404 U.S. 519, 520 (1972).

In response to Martin’s contentions, we begin with the rules of the Tax
Court. See 26 U.S.C. § 7453 (stating that “the proceedings of the Tax Court . . .
shall be conducted in accordance with such rules of practice and procedure . . . as
the Tax Court may prescribe . . . .”). Rule 34(b) provides, in relevant part:
The petition in a deficiency or liability action shall contain []:
...
(4) Clear and concise assignments of each and every error
which the petitioner alleges to have been committed by the
Commissioner in the determination of the deficiency or
liability. The assignments of error shall include issues in
respect of which the burden of proof is on the Commissioner.
Any issue not raised in the assignments of error shall be
deemed to be conceded. Each assignment of error shall be
separately lettered.

(5) Clear and concise lettered statements of the facts on which
the petitioner bases the assignments of error, except with
respect to those assignments of error as to which the burden of
proof is on the Commissioner.

We agree with the Tax Court’s finding that Martin’s petitions do not satisfy
the requirements of Rule 34(b)(4) and (5). Martin does not identify any errors
related to the determination of his tax deficiency in his petition, the amended
petition, or his present filings. The statement, “The assignments of error shall
include issues in respect of which the burden of proof is on the Commissioner,”
directly refutes Martin’s repeated argument that he need not identify specific
errors because the burden of proof is on the Commissioner.

Instead of providing specific arguments to contest his tax deficiency,
Martin challenges the Commissioner’s ability to impose any tax on him because
he is a citizen “of the several states,” but not a “federal U.S. citizen.” Appt. Br.
at 6. This argument is frivolous. “The federal government’s taxation power is
not limited to the District of Columbia or other federal enclaves.” Gallegos v.
Comm’r, 150 F. App’x 846, 847 (10th Cir. 2005) (citing United States v. Collins,
920 F.2d 619, 629 (10th Cir. 1990), for the statement, “For seventy-five years, the
Supreme Court has recognized that the sixteenth amendment authorizes a direct
nonapportioned [income] tax upon United States citizens throughout the nation,
not just in federal enclaves, . . . , efforts to argue otherwise have been sanctioned
as frivolous.”). Martin’s remaining arguments—regarding the location of the
hearing and accusations of treason—are also frivolous and do not merit further
discussion. E.g. Malan v. Comm’r, 261 F. App’x 117, 119 (10th Cir. 2008)
(characterizing an argument that “the Tax Court failed to honor [petitioner’s]
designation of the place of trial” as lacking merit “and/or” frivolous).
By not identifying how the Commissioner erred in the determination of his
tax deficiency, Martin’s petition failed to state a claim upon which relief can be
granted. We affirm.

Entered for the Court
Mary Beck Briscoe
Circuit Judge

[Gregg]

Martin accuses the Tax Court, and possibly this court, of treason.

I'm shocked that the court didn't agree with that one, it's usually a big winner at Lost Horizons.