TP or not TP?

[The Observer]

Although this case smacks of TPness, I was unable to find the the previous district court referenced herein. Anyone else able to pull it up and determine if our appellant here is sipping kool-ade?



GARY D BROWN
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA; TERESA HARLEY, INDIVIDUALLY AND IN
HER CAPACITY AS OPERATIONS MANAGER, COLLECTION,
FOR THE INTERNAL REVENUE SERVICE;
CATHY BENSON, INDIVIDUALLY AND IN HER CAPACITY AS SETTLEMENT
OFFICER FOR THE INTERNAL REVENUE SERVICE
Defendants - Appellees

Release Date: OCTOBER 31, 2008


IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Summary Calendar

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CV-67

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:/*/

The Internal Revenue Service determined that Gary D. Brown owed income taxes for the years 2000 and 2002. The IRS assessed the taxes due, and it prepared to collect those taxes by sending Brown a notice of federal tax-lien filing and a final notice of tax levy. Brown challenged the IRS's actions by initiating a civil action in the U.S. District Court for the Northern District of Texas. The district court dismissed the action for lack of subject-matter jurisdiction. See Brown v. United States, No. 4:06-CV-691-Y, slip op. at 2 (N.D. Tex. Dec. 27, 2006). Brown did not appeal. Instead, Brown filed a second action in the same district court challenging the same IRS actions. The district court dismissed Brown's complaint, and Brown now appeals. The government argues that Brown's appeal is frivolous, and it seeks to sanction Brown $ 8,000 for persisting in the appeal.

We have carefully reviewed the record on appeal, as well as the record from Brown's prior proceeding in civil action 4:06-CV-691-Y. Our review satisfies us that Brown's arguments on appeal are not only wholly without merit but are so baseless in law as to be frivolous. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); 26 U.S.C. section 6330(d)(1); id. sections 6213(a), 7442. This conclusion does not change in the light of the authorities upon which Brown relies. See Beall v. United States, 336 F.3d 419, 422 (5th Cir. 2003), abrogated on other grounds by Hinck v. United States, 127 S.Ct. 2011, 2016 (2007); Shaw v. United States, 20 F.3d 182, 184 (5th Cir. 1994). Although Brown also raises several new arguments on appeal, "t is well settled that we do not consider issues raised for the first time on appeal." Wagstaff v. U.S. Dep't of Educ., 509 F.3d 661, 664 n.2 (5th Cir. 2007) (per curiam) (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 344 n.3 (5th Cir. 2007)). This is so irrespective of whether the litigant proceeds pro se. See, e.g., id.

With respect to the motion for sanctions, the government requests a lump-sum sanction of $ 8,000 in lieu of calculating the costs and attorney's fees it incurred in responding to Brown's appeal. We agree this appeal is frivolous and thus grant the motion for sanctions even though Brown proceeds pro se. See FED. R. APP. P. 38; Stearman v. Comm'r, 436 F.3d 533, 538 (5th Cir. 2006); Wallis v. Commissioner of I.R.S., 203 Fed.Appx. 591 (5th Cir. Oct. 24, 2006); Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987).

We DISMISS this appeal and GRANT the motion for sanctions in the amount of $ 8,000 for persisting in this frivolous appeal. All costs of these proceedings are to be assessed against Brown.

FOOTNOTE

/*/ Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

[Famspear]

Yes, a quick look shows that in his amended complaint, he raises the Paperwork Reduction Act-OMB control number argument.

EDIT: Specifically, he basically stated that Form 1040 "has displayed the same control number, OMB 1545-0074", for a period in "excess of twenty-five years". See pages 4 and 5 of the Plaintiff's First Amended Complaint, at docket entry 8, filed Feb. 22, 2007, in case number 4:07-cv-00067-Y, in Gary D. Brown, Plaintiff v. United States of America, Teresa Harley and Cathy Benson, U.S. District Court for the Northern District of Texas (Fort Worth Division).

Brown argued that the use of the control number "would have expired no later than 1984."

Sorry, Gary-poo, but you obviously have not read the case law on this subject or, if you have, you are either dense or stubborn.

Ka-ching! $8,000!

Thank you!

[Famspear]

In his Amended Complaint, plaintiff Gary D. Brown states:

"All of the defendants' conduct toward the plaintiff has been predicated on the notion that the plaintiff has a legal obligation to submit the information necessary to complete a U.S. Individual Income Tax Return (IRS Form 1040) for each of the years covered by the Letter of Determination."

He goes on to say that before Form 1040 can be used, the IRS must obtain approval from OMB, etc., etc.

Aside from the frivolous argument that the OMB control number on Form 1040 is somehow deficient or that Form 1040 is somehow not approved, etc., etc., Gary-poo missed the point that the "defendants' conduct toward the plaintiff" has NOT been predicated solely on the notion that the plaintiff has a "filing requirement" for Form 1040. The obligation to pay the tax and the obligation to file the return, while intertwined, are actually separate legal obligations.

So, it is incorrect to say that All of the defendants' conduct is predicated on Gary's tax return filing requirement - a nuance that apparently will cost Gary-poo the tidy sum of $8,000 (not to mention the taxes, interest, and other penalties as well).