Andrew Scott v. Commissioner, 2009 TNT 213-10, No. 08-4766 (11/6/2009).
ANDREW SCOTT,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
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 5th day of November, two thousand nine.
PRESENT:
John M. Walker, Jr.,
Guido Calabresi,
Robert A. Katzmann,
Circuit Judges.
FOR PETITIONER:
Andrew Scott, pro se, Chester, VT.
FOR RESPONDENT:
John A. DiCicco, Acting Assistant Attorney General; David I. Pincus and Anthony T. Sheehan, Attorneys, Tax Division, Department of Justice, Washington, DC.
Appeal from an order of the United States Tax Court (Kroupa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the Tax Court is AFFIRMED.
Petitioner Andrew Scott, pro se, appeals the Tax Court's grant of summary judgment dismissing his petition challenging the notice of deficiency by the Internal Revenue Service ("IRS"). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As a initial matter, because Scott does not challenge the $20,000 penalty imposed by the Tax Court under 26 U.S.C. § 6673 for his advancement of frivolous claims, we deem that claim waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that when a litigant raises an issue before the district court but does not raise it on appeal, it is abandoned, and noting that this rule may be applied to pro se litigants). Regardless, even if Scott had challenged that decision, given the abject frivolity of his arguments (as noted below), we cannot say the Tax Court abused its discretion in imposing a $20,000 sanction.
We review the Tax Court's conclusions of law de novo, its factual findings for clear error, and its application of its own procedural rules for abuse of discretion. See Sunik v. Comm'r, 321 F.3d 335, 337 (2d Cir. 2003); Madison Recycling Assocs. v. Comm'r, 295 F.3d 280, 285 (2d Cir. 2002); 26 U.S.C. § 7482(a)(1) ("The United States Courts of Appeals . . . shall . . . review the decisions of the Tax Court . . . in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury. . . .").
Here, the Tax Court properly granted the Government's motion for summary judgment. The record shows -- and indeed, Scott conceded -- that although he earned $61,072 in the 2004 tax year, he stated on his tax return that he had zero wages for that year. Thus, the Government's notice of deficiency accurately concluded that Scott understated his tax liability by $10,031, and because that was a substantial understatement, he was liable for a $2,941 accuracy-related penalty under 26 U.S.C. § 6662. See 26 U.S.C. § 6662(d)(1)(A) (understatement is substantial where the reported tax amount is understated by the greater of ten percent of the tax required to be shown or $5,000). In his defense, Scott argues that he is not an "employee" under the Internal Revenue Code, and that his income does not constitute "wages." We have repeatedly rejected these specious arguments. See, e.g., Conner v. Comm'r of Internal Revenue, 770 F.2d 17, 20 (2d Cir. 1985) ("Wages are income."); see also id. (noting that the assertion to the contrary "has been rejected so frequently that the very raising of it justifies the imposition of sanctions"). We have carefully reviewed Scott's remaining arguments and found them to be without merit.
For the foregoing reasons, the order of the Tax Court is hereby AFFIRMED.
For The Court:
Catherine O'Hagan Wolfe, Clerk
By: * * *