George W. Lukovsky and Elizabeth L. Lukovsky, Appellants, v. Commissioner of Internal Revenue, Appellee, 734 F.2d 1320 (8th Cir. 1984)

Taxpayers George W. Lukovsky and his wife Elizabeth Lukovsky appeal from the tax court's dismissal for lack of prosecution of their petition contesting an income tax deficiency assessment for 1978 and 1979 and the imposition of damages in the amount of $500 pursuant to 26 U.S.C. § 6673 (1976).¹  We affirm.

Appellants claimed numerous business deductions on their 1978 and 1979 tax returns, but refused to substantiate those deductions on the ground that doing so would violate their fifth amendment privilege against self-incrimination. When appellants failed to come forward with any evidence to prove the legitimacy of their deductions or where the danger of self-incrimination lay, the tax court dismissed the action for failure to prosecute and levied statutory damages of $500 under 26 U.S.C. § 6673. The tax court noted that appellants instituted the proceedings primarily for delay and with full knowledge that their claim of privilege was frivolous. Appellants had unsuccessfully employed the same dilatory tactics with respect to assessed deficiencies on their 1977 income tax return. See Lukovsky v. Commissioner, 692 F.2d 527 (8th Cir. 1982), cert. denied, --- U.S. ----, 103 S. Ct. 1776, 76 L. Ed. 2d 347 (1983). Therefore, the tax court did not err in dismissing appellant's petition for lack of prosecution or abuse its discretion in imposing statutory damages.

Pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912, the government requests that we impose sanctions on appellants for bringing this frivolous appeal. We deny the request, but warn appellants that " [w]hile sanctions will be denied in the present case, we give notice that, in the future, this court will consider assessing just damages as well as double costs for taking frivolous appeals on issues already clearly resolved." Ueckert v. Commissioner, 721 F.2d 248, 250-51 (8th Cir. 1983).

Affirmed.