William E. Tickel, Jr., Plaintiff-appellant, v. Commissioner of Internal Revenue, Defendant-appellee, 810 F.2d 203 (6th Cir. 1986)

ORDER

The pro se appellant, William A. Tickel, Jr., is appealing the September 10, 1985, order of the district court granting the appellee's motion to dismiss in this taxpayer's suit. The appellant brought suit to enjoin the Commissioner of the Internal Revenue Service from taking any action against the appellant while a parallel suit seeking a refund of an assessed penalty was also prosecuted in district court. The appellee requests sanctions in the form of double costs and an award of attorney's fees.

The case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the briefs, documents filed on appeal, and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

On February 3, 1984, the appellant filed an Amended United States Individual Tax Return (Form 1040X) for 1981, showing gross income of zero and seeking a tax refund. The appellant stated therein that "wages are gross receipts and not income." The appellant attached a memorandum of law. The Internal Revenue Service assessed a $500.00 penalty pursuant to 26 U.S.C. § 6702 for filing a frivolous tax return. Appellant paid $75.00 toward satisfaction of the $500.00 assessment and filed a claim for a refund of partial payment.

The appellant then filed suit in district court to enjoin the IRS from maintaining any "proceedings or actions of any kind in all matters of income tax pursuant to 26 USC" based on the theory that the Sixteenth Amendment to the Constitution was not properly ratified. The government moved to dismiss. The district court granted the appellee's motion for failure to state a claim and the appellant appealed on October 7, 1985.

The district court rejected the appellant's argument that the Sixteenth Amendment to the Constitution was not constitutionally adopted. Sisk v. Commissioner, 791 F.2d 58, 60-61 (6th Cir. 1986). For the reasons stated in the district court opinion, we affirm the decision of the district court.

The appellee seeks sanctions in the form of double costs and an award of attorney's fees pursuant to Federal Rules of Appellate Procedure 38 and 28 U.S.C. § 1912. This Court has held that it "will not hesitate to award damages when the appeal is frivolous, or taken merely for purposes of delay, involving an issue or issues already 'clearly resolved' " (citations omitted). Martin v. Commissioner, 756 F.2d 38, 40-41 (6th Cir. 1985). See also Beer v. Commissioner, 733 F.2d 435 (6th Cir.), cert. denied, 105 S. Ct. 185 (1984).

Accordingly, it is ORDERED that the final judgment of the district court is affirmed. Rule 9(d) (2), Rules of the Sixth Circuit.

It is further ORDERED that sactions in the form of double costs and attorney's fees are awarded to the appellee. The appellee shall submit a detailed schedule of the costs and fees on appeal to the Clerk of this Court within 14 days of the filing date of this order.