843 F.2d 502: Unpublished Disposition

MEMORANDUM**

Jacqueline M. Robnett, pro se, appeals from a tax court order dismissing for failure to state a claim her petition for redetermination of a tax deficiency. We affirm.

Robnett contends that (1) the tax court did not have jurisdiction over her; (2) as a United States citizen, she is not liable for taxes on income earned from sources within the United States; (3) she is not liable for additions to tax because she is not liable for the underlying tax; (4) the tax court denied her due process; (5) the passage of the Tax Equity and Fiscal Responsibility Act (TEFRA) was unconstitutional; and (6) an Internal Revenue Service (IRS) officer misled her when giving her information on her appellate rights. The Commissioner points out that all of these claims have been repeatedly rejected by the courts and are wholly frivolous.

First, Robnett argues that because she made only a limited appearance before the tax court, the court had no personal jurisdiction over her. This is nonsense. The tax court has jurisdiction when (1) the Commissioner has issued a valid notice of tax deficiency, and (2) the taxpayer has timely petitioned the tax court for a redetermination of the tax deficiency. Tax Ct.R. 13(a). Those conditions were met in this case. Robnett did not limit her appearance to the issue of personal jurisdiction; rather, she attempted to litigate the merits of her petition. Accordingly, the tax court had personal jurisdiction over her.

Second, Robnett argues that there is no provision in the Internal Revenue Code (IRC) that taxes United States citizens for income derived from sources within the United States. However, 26 U.S.C. Sec. 1 imposes a federal tax on all individuals for all taxable income "from whatever source derived." See 26 U.S.C. Sec. 61. Accordingly, the income Robnett earned from sources within the United States is subject to federal taxation.

Third, Robnett argues that because she is not liable for the underlying tax, she cannot be liable for the additions to tax imposed on her by the Commissioner. The Commissioner's determinations of tax deficiency and additions to tax are presumed to be correct. See Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir.1985). Because none of Robnett's allegationss rebutted the Commissioner's determinations, the tax court did not err in upholding the Commissioner's calculations.

Fourth, Robnett argues that the tax court denied her due process by refusing to consider the merits of several motions she filed, and by dismissing her petition. The tax court does not deny a taxpayer due process if it refuses to consider the merits of frivolous questions. Cf. Id. at 936 (IRS's failure to address frivolous questions posed by a taxpayer did not deny the taxpayer due process). The various motions filed by Robnett were wholly without merit, contained arguments repeatedly rejected by this court, and reiterated arguments made in her petition for redetermination. Furthermore, Robnett had a full opportunity to present legitimate grievances. She responded to the Commissioner's motion to dismiss and motion to award damages, and the tax court fully addressed the issues she raised in her petition. Accordingly, the tax court did not deny her due process.

Fifth, Robnett argues that she is not liable for the penalties imposed against her under 26 U.S.C. Secs. 6651(a) and 6673 because the act in which they were adopted (TEFRA) was passed in violation of the origination clause of the Constitution. However, this court has held that TEFRA's passage did not violate the origination clause. See, e.g., Jolly v. United States, 764 F.2d 642, 644-45 (9th Cir.1985). Accordingly, the Commissioner's imposition of penalties was not constitutionally void.

Finally, Robnett argues that her case should be remanded because an IRS officer, in responding to an inquiry from Robnett, did not tell her she could file an administrative appeal as an alternative to pursuing an appeal in the tax court. The officer's letter gave Robnett the information she requested and did not explicitly or impliedly claim to contain a complete list of Robnett's appellate rights. Furthermore, Robnett does not indicate how she was prejudiced by the letter. Cf. United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir.1985) (due process challenges require a showing of prejudice). Accordingly, Robnett was not misled by the IRS.

This is an appropriate case for damages to the IRS as a sanction for filing the frivolous appeal. See DeWitt v. Western Pac. R.R. Co., 719 F.2d 1448, 1451 (9th Cir.1983). An appeal is frivolous if the result is obvious or the arguments of error are wholly without merit. Id. The issues raised by Robnett in this appeal are entirely without substance. Cook v. Spillman, 806 F.2d 948, 949 (9th Cir.1986) (court imposed sanctions against pro se litigant who raised argument repeatedly repudiated by the court). Therefore, the Commissioner's request for $1500 in attorney fees is granted.

AFFIRMED with costs, plus $1500 attorney fees.