Unpublished Disposition, 842 F.2d 1294 (9th Cir. 1988)

MEMORANDUM^* 

If, say taxpayers, their contentions are patently frivolous, as the Tax Court and the Commissioner both declared, why did the latter deem necessary a thirty-five page appeal brief.

We, of course, will attempt no answer to the rhetorical question but will simply treat seriatim the highlights of taxpayers jeremiad.¹ 

Granted the Tax Court "plays with loaded dice" in imposing pleading requirements on litigant taxpayers that are more onerous than the Federal Rules of Civil Procedure followed by the Federal district courts.²  But the Tax Court marches to a different drummer: its own rules. 26 U.S.C. § 7453; Lasky v. Commissioner, 235 F.2d 97 (9th Cir. 1956), aff'd, 352 U.S. 1027 (1956); Factor v. Commissioner, 281 F.2d 100, 122 (9th Cir. 1960), cert. denied, 364 U.S. 933 (1960).

Nothing in or about them offends procedural due process. Taxpayers' petition failed to meet the Tax Court's standards save on one issue and that issue of fact was resolved against him following a hearing.

In an unbroken line of cases, the Supreme Court (and of course the inferior courts) has declared that in federal tax matters the Commissioner's assessments are presumptively correct and a dissatisfied taxpayer bears the burden of showing to the contrary.

True, the Court in United States v. Rindskopf, 105 U.S. 418 (1881), the parent case, did not, as taxpayers point out, cite authority or set out its rationale in support of the proposition, but that Court is the bellwether.

In a recent case, Larsen v. Commissioner, 765 F.2d 939 (9th Cir. 1985), this court rejected a taxpayer's argument that the statute authorizing sanctions, 26 U.S.C. § 6673, is "unconstitutional because it infringes upon his right to petition the government for redress of grievances," ruling that " [t]he right to petition, protected by the First Amendment does not include the right to maintain groundless proceedings." 765 F.2d at 941.

In answer to taxpayers kindred argument that 26 U.S.C. § 6673 is "unconstitutionally vague or overbroad" we respond with the quotation from the Second Circuit's decision in Connor v. Commissioner, 770 F.2d 17 (2d Cir. 1985), the statutory language is "sufficiently precise to avoid any constitutional infirmity, especially in light of any action taken by the tax court pursuant to it." For an extended rationale see Coleman v. Commissioner, 791 F.2d 68 (7th Cir. 1986)³ 

Finally, we come to taxpayers' plaint that the $5,000.00 sanction imposed by the Tax Court was immoderate. We agree. The proceedings in the Tax Court were not prolonged nor were the issues time consuming. (Indeed, all but one was decided on summary judgment and the factual matter involved was but perfunctorily pursued). In these circumstances a sanction of $1,500.00 is appropriate and we reduce the penalty accordingly. Nor are we inclined to add and do not add to that a sum in connection with this appeal.

AFFIRMED, as modified. Costs to appellee.