2nd Circuit Upholds Withholding

[The Observer]

JOSEPH CAMERON,
Plaintiff-Appellant,
v.
MTA, NEW YORK CITY TRANSIT AUTHORITY, ITS OFFICERS, DIRECTORS
AND EMPLOYEES, UNITED STATES GOVERNMENT, ITS AGENCY,
THE INTERNAL REVENUE SERVICE, ITS AGENTS AND EMPLOYEE,
Defendants-Appellees.

Release Date: MARCH 27, 2009

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 March, two thousand nine.

PRESENT:

Hon. Wilfred Feinberg,
Hon. Jon O. Newman,
Hon. Reena Raggi,
Circuit Judges.

APPEARING FOR APPELLANT:

JOSEPH CAMERON, pro se, Brooklyn, N.Y.

APPEARING FOR APPELLEES:

RICHARD FARBER and Regina S. Moriarty, Attorneys, United States
Department of Justice, Tax Division (Richard T. Morrison, Acting
Assistant Attorney General, Tax Division, Benton J. Campbell,
United States Attorney for the Eastern District of New York,
on the brief), Washington, D.C., for federal
defendants.

FRANCINE E. MENAKER, Attorney, New York City Transit Authority,
Office of the General Counsel (Martin B. Schnabel, General
Counsel, Kristin Nolan, Of Counsel, on the brief),
Brooklyn, N.Y., for MTA defendants.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Carol B. Amon, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court entered on July 27, 2007, is AFFIRMED.

Appellant Joseph Cameron, pro se, appeals the dismissal of his complaint seeking, inter alia, a refund of his federal income taxes and an order preventing his employer, the Metropolitan Transportation Authority ("MTA"), from withholding taxes from his wages. We assume the parties' familiarity with the facts and procedural history, which we reference only as necessary to explain our decision to affirm.

We review de novo the dismissal of a complaint pursuant to Rule 12(b)(1) or (6). See Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 2008). In each instance, we "tak[e] all facts alleged in the complaint as true and draw[] all reasonable inferences in favor of the plaintiff." Securities Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000).

1. Claim Against United States for Refund

Because Cameron's complaint was filed in May 2006, he is statutorily barred from seeking a refund for taxes paid in tax years 1997 through 2002. See 26 U.S.C. section 6511(b)(2)(A); Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

The district court properly dismissed as frivolous Cameron's remaining refund claims against the United States. Section 61 of Title 26 defines "gross income" as "all income from whatever source derived," 26 U.S.C. section 61(a), and "the argument that [wages] are not [income] has been rejected so frequently that the very raising of it justifies the imposition of sanctions." Connor v. Comm'r Internal Revenue, 770 F.2d 17, 20 (2d Cir. 1985). Cameron's argument that he was not required to pay income taxes because the regulations implementing the Internal Revenue Code were imposed in violation of the Administrative Procedure Act warrants no discussion, as his tax liability and the MTA's obligation to withhold taxes from his wages are imposed by the Code itself. See 26 U.S.C. sections 61, 3402.
2. Claim for Order Against MTA

The district court correctly dismissed Cameron's claims against the MTA for failure to state a claim. Under 26 U.S.C. section 3402(a), "every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary" unless an exception applies. In the absence of an applicable exception, the district court correctly concluded that the MTA was required to deduct taxes from Cameron's wages.

We have considered all of plaintiffs' remaining arguments on appeal and have found them to be without merit. Accordingly, we AFFIRM the judgment of dismissal.

For the Court:

Catherine O'Hagan Wolfe,
Clerk of Court

By: * * *

[wserra]

Sun Rises in East.

Schulz Asks for Money.

[jkeeb]

The district court properly dismissed as frivolous Cameron's remaining refund claims against the United States. Section 61 of Title 26 defines "gross income" as "all income from whatever source derived," 26 U.S.C. section 61(a), and "the argument that [wages] are not [income] has been rejected so frequently that the very raising of it justifies the imposition of sanctions." Connor v. Comm'r Internal Revenue, 770 F.2d 17, 20 (2d Cir. 1985).

The appeals court forgot to include the special qualifier that "wages" mean only federally connected wages and not private company "return of labor capital". Those justices must not have graduated from the Erwin Rommel Skool of Law and are certainly not certified by the Freedom Law Skul.