Unpublished Disposition, 872 F.2d 429 (9th Cir. 1989)

MEMORANDUM^** 

Robert Nehls (Nehls) appeals pro se, the tax court's dismissal of his petition for redetermination and imposition of damages pursuant to 26 U.S.C. § 6673. He contends that the tax court erred because he is not required to pay taxes. The Commissioner requests $1,500 damages on the grounds that Nehls' appeal is frivolous.

The judgment is affirmed. Because Nehls did not state clear and concise assignments of error or support his allegations with clear and concise statements of facts on which the assignments of error are based, as required by Tax Court Rule 34(b) (4) & (5), the tax court did not err in dismissing the amended petition for failure to state a claim. See Tax Ct.Rule 34(b) (4) & (5); Grimes v. Commissioner, 806 F.2d 1451, 1453 (9th Cir. 1986) (per curiam). The tax court did not abuse its discretion in awarding damages pursuant to 26 U.S.C. § 6673 based on its finding that Nehls' petition, which contained nothing but conclusory allegations and did not point to any justiciable error, was primarily instituted for delay. See 26 U.S.C. § 6673.

The Commissioner's request for damages is granted because Nehls' contentions on appeal are without merit and the result of the appeal should have been obvious. See Fed. R. App. P. 38; Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987). However, because Nehls is pro se and does not appear to understand the invalidity of his contentions, we reduce the award of damages from $1500 to $500.

AFFIRMED IN PART; DAMAGE AWARD REDUCED.