Unpublished Disposition, 844 F.2d 791 (9th Cir. 1986)

MEMORANDUM^** 

Daniel T. Brockman appeals pro se from a tax court decision denying his petition for redetermination of federal income tax deficiencies assessed by the Commissioner for the year 1982. Brockman contends the tax court erred by determining that Brockman had failed to prove gambling losses he had claimed on his tax return and by failing to grant him immunity from prosecution so that he could testify in the tax court proceedings. We affirm.

On his federal income tax return for 1982, taxpayer Daniel T. Brockman reported, in addition to other income, $62,595 as income reflecting his gambling winnings from the Oak Tree Racing Association. He also claimed the same amount as an itemized deduction for gambling losses.¹  On April 4, 1985, the Commissioner disallowed the claimed gambling loss and issued Brockman a notice of deficiency for the taxes on the gambling income.

On June 21, 1985, Brockman filed a petition in the tax court for a redetermination of the deficiency. At a tax court hearing held on October 27, 1986, Brockman, appearing pro se, moved to shift the burden of proof of the claimed gambling losses to the Commissioner, and asked the court to grant him immunity from prosecution so that he could present evidence regarding his gambling activities. The tax court denied the motions. At the trial on the merits, Brockman testified that the "monies won gambling in 1982 were subsequently lost in 1982" but that he "was unable to show any proof in that regard". He claimed that a "fear of criminal prosecution" inhibited him from presenting further testimony, and he claimed protection under the fifth amendment. Brockman offered no additional evidence. The tax court issued an oral opinion upholding the Commissioner's assessed deficiency. Brockman filed a timely notice of appeal.

* Failure to Prove Losses

Brockman contends the tax court erred by determining that he had failed to prove his claimed gambling losses. This contention is without merit.

The burden of proof is upon the taxpayer to show the merits of his claim by a preponderance of the evidence. Rockwell v. Commissioner, 512 F.2d 882, 885 (9th Cir.), cert. denied, 423 U.S. 1015 (1975). Brockman produced no documents or other evidence to substantiate his claim of gambling losses other than his uncorroborated assertion that he incurred losses in the amount claimed. His primary argument was that the "gambling industry" furnished him no receipts. He refused to explain where he lost the money or to provide any further details.

Brockman claimed that the fifth amendment privilege against self-incrimination excused him from not presenting evidence to support his burden of proof. A taxpayer's invocation of the fifth amendment's self-incrimination clause, however, may not be used as a substitute for producing evidence to support his burden of proof in a tax court proceeding. United States v. Rylander, 460 U.S. 752, 758 (1983).

Every taxpayer is required to keep records sufficient to substantiate the amount of gross income deductions, and credits shown on his income tax return. 26 U.S.C. § 6001; 26 C.F.R. Sec. 1.6001-1(a). Gambling losses provide no exception to these requirements. See Schooler v. Commissioner, 68 T.C. 867, 869 (1977). The record indicates that, despite the Commissioner's requests for such information, Brockman refused to provide any bank statements from the relevant tax year to support his claimed losses, and failed even to state where the losses occurred. Because Brockman failed to provide any evidence that he was entitled to his claimed deduction for gambling losses, the tax court did not err by finding that he failed to sustain his burden of proof and upholding the deficiency.

II

Immunity

Brockman also contends that the tax court erred by denying his request for immunity from criminal prosecution. This contention is without merit.

The decision whether to grant immunity to a witness in a tax court proceeding rests with the United States, not with the tax court. 18 U.S.C. §§ 6000-6005; McCoy v. Commissioner, 696 F.2d 1234, 1237 (9th Cir. 1983). A tax court's denial of a taxpayer's request for immunity does not violate due process rights. Id. Because the tax court had no authority to grant immunity to Brockman, the court therefore did not err by denying Brockman's request for immunity.

III

Sanctions

The Commissioner requests this court to impose sanctions for a frivolous appeal.

This court may award "just damages and single or double costs to the appellee" where the court has determined that the appeal is frivolous. Fed. R. App. P. 38; see also 28 U.S.C. § 1912 (where judgment is affirmed on appeal, court may in its discretion award just damages for the delay, and single or double costs). An appeal is frivolous if the result is obvious or the arguments of error are wholly without merit. Swimmer v. Internal Revenue Service, 811 F.2d 1343, 1345 (9th Cir. 1987). We award double costs. See generally Cook v. Spillman, 806 F.2d 948, 949 n. 1 (9th Cir. 1986) (sanctions imposed to discourage nonmeritorious appeals). See Cook, 806 F.2d at 949 ($1,500 awarded).² 

AFFIRMED.