Frivolous Squared

[LPC]

Not just sanctions of $8,000, but sanctions of $8,000 with the threat of criminal or civil contempt if not paid.

George Cuartero v. U.S. Attorney General et al., No. 07-0835 (2nd Cir. 1/27/2009) (not precedential).

GEORGE CUARTERO,
Appellant,
v.
UNITED STATES ATTORNEY GENERAL, COMMISSIONER OF IRS,
Appellee.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

CORRECTED SUMMARY ORDER

[Explanation of nonprecedential effect of summary order deleted.]

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 27th day of January, two thousand and nine.

PRESENT:
HON. JON O. NEWMAN,
HON. RALPH K. WINTER,
HON. GUIDO CALABRESI
Circuit Judges.

Submitted for Appellant:

GEORGE CUARTERO

Submitted for Appellee:

EILEEN J. O'CONNOR, Assistant Attorney General (Kevin J. O'Connor, United States Attorney, of counsel) Michael J. Haungs and Karen G. Gregory, Attorneys, Tax Division, Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States District Court for the District of Connecticut (Chatigny, J.), it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED, and the motion for sanctions is GRANTED in the amount of $8,000.

The United States District Court for the District of Connecticut (Chatigny, J.) granted the Government's motion to dismiss George Cuartero's action and to affirm the Internal Revenue Service's ("IRS") determination denying George Cuartero's request for the removal of a tax lien.

The District Court also denied Cuartero's motion for summary judgment. The IRS alleges that Cuartero has repeatedly filed frivolous tax returns. Cuartero, acting pro se, challenges the legality of the federal taxation system and argues that as a "nonresident alien" he is not liable for any tax payments.

Cuartero's tax protestor theories have been specifically, repeatedly, and emphatically rejected by courts, and the IRS has issued a publication warning taxpayers against making them. See, e.g., United States v. Cooper, 170 F.3d 691, 691 (7th Cir. 1999) ("nonresident alien" argument has been rejected so often that it is "no longer merely frivolous," but "frivolous squared"); Connor v. Comm'r, 770 F.2d 17, 20 (2d Cir. 1985) (argument that wages are not income "has been rejected so frequently that the very raising of it justifies the imposition of sanctions"); see also Internal Revenue Service, The Truth About Frivolous Tax Arguments (2007), available at http://www.irs.gov/pub/irs-utl/friv_tax.pdf (describing frivolous arguments and warning taxpayers about the consequences of making them). We therefore affirm the District Court's dismissal of Cuartero's action and affirm the District Court's denial of Cuartero's motion for summary judgment.

The Government has also moved, pursuant to 28 U.S.C. § 1912 and Federal Rule of Appellate Procedure 38, for an order imposing sanctions of $8,000 against Cuartero for maintaining a frivolous appeal, saying that such sanctions are necessary to deter him and to defray the attorney and other costs associated with defending against his frivolous appeal. We agree that Cuartero's arguments are so patently frivolous that his very making them is sanctionable. See Schiff v. United States, 919 F.2d 830, 832-35 (2d Cir. 1990).

We therefore AFFIRM 9 the judgment of the District Court and GRANT the request for sanctions in the amount of $8,000. 10 Cuartero is ORDERED to comply with the sanction within 20 days by sending to counsel for the Government a check, payable to the United States Treasury, in the amount of $8,000; failure to comply with this order will expose Cuartero to the risk of civil and/or criminal contempt.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of
Court

By: * * *

[Doktor Avalanche]

I think the time has come when the courts must drop the presumption that everyone knows the law - cleary, not everyone does.

Of course, Dan, I am not in any way referring to you.

[Judge Roy Bean]

Cuartero is ORDERED to comply with the sanction within 20 days by sending to counsel for the Government a check, payable to the United States Treasury, in the amount of $8,000;

A check?

'Round here I'd only take gold coins or a couple of decent horses.

[The Dog]

Not just sanctions of $8,000, but sanctions of $8,000 with the threat of criminal or civil contempt if not paid.

Does this imply that many sanctions imposed are not in fact paid?

[Judge Roy Bean]

Not just sanctions of $8,000, but sanctions of $8,000 with the threat of criminal or civil contempt if not paid.

Does this imply that many sanctions imposed are not in fact paid?

Collecting on civil and even criminal judgments is problematic when the perp has no source of income and/or there are no assets to seize and auction off. Obviously the end result can be incarceration for a finding of contempt, but IMHO that is fiscally upside-down; the sanctions don't get paid and we pay to house the bozo for whatever the maximum time is allowed by the sentencing rules.

These kinds of people are typically in a vortex of other "issues" that seem to feed off each other and there are almost always other people they've dragged into their troubles who suffer more.