Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)
Annotate this CaseStanley Earl BUSH, Petitioner-Appellant,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee.
No. 88-7289.
United States Court of Appeals, Ninth Circuit.
Submitted* June 28, 1989.Decided July 26, 1989.
Before PREGERSON, O'SCANNLAIN and TROTT, Circuit Judges.
MEMORANDUM**
* Stan Bush ("Bush" or "appellant") failed to file a tax return for 1982. As a result, the Commissioner of Internal Revenue ("Commissioner") sent Bush a notice of deficiency, stating that he was liable for taxes on his 1982 income, plus penalties for (1) failure to file a tax return (26 U.S.C. § 6651(a)), (2) underpayment of his estimated tax liabilities (26 U.S.C. § 6654(a)), and (3) negligent or intentional disregard of the IRS rules and regulations (26 U.S.C. § 6653(a)). Bush petitioned the United States Tax Court for a redetermination of the asserted tax deficiency and penalties. The Commissioner asked the court for judgment on the pleadings under Tax Court Rule 120, and an award of damages under 26 U.S.C. § 6673(a). Bush responded to the Commissioner's motions alleging various constitutional violations, including that the income tax was an unapportioned direct tax in violation of the provisions of article I of the Constitution. The tax court construed the Commissioner's motion sua sponte as a motion to dismiss1 and dismissed the petition for failure to state a claim on which relief could be granted because it did not meet the threshold requirements of Tax Court Rule 34(b) and awarded the Commissioner $4500 in damages under 26 U.S.C. § 6673. Bush timely appeals.
II
Bush first contends that the tax court erred in dismissing his petition for failure to meet the threshold requirements of Tax Court Rule 34(b).
A taxpayer challenging a notice of deficiency must allege "clear and concise assignments of each and every error which the petitioner alleges to have been committed by the Commissioner in the determination of the deficiency liability." Tax Court Rule 34(b) (4). Further, the taxpayer must allege " [c]lear and concise lettered statements of the facts on which petitioner bases the assignments of error...." Tax Court Rule 34(b) (5).
Bush's allegation that he was entitled to deductions and credits which the Commissioner failed to consider does not satisfy the detailed pleading requirements of Rule 34(b). See Grimes v. Commissioner, 806 F.2d 1451, 1453-54 (9th Cir. 1986); Scherping v. Commissioner, 747 F.2d 478, 479-80 (8th Cir. 1984).
III
On appeal, Bush raises several issues not raised below. He has shown no extraordinary reasons why these issues should be heard by this court, nor are they issues purely of law central to the case and important to the public. Therefore, we decline to consider them. Abex Corp. v. Ski's Enterprises, Inc., 748 F.2d 513, 516 (9th Cir. 1984).
IV
The Commissioner requests $1500 in sanctions against Bush for bringing a frivolous appeal. This court has discretion to award damages as a sanction for filing a frivolous appeal. Fed. R. App. P. 38; DeWitt v. Western Pac. R.R., 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. Swimmer v. Commissioner, 811 F.2d 1343, 1345 (9th Cir. 1987).
As discussed previously, Bush's arguments are entirely without merit. Accordingly, the Commissioner's request for sanctions is granted.
DISMISSED.
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
The tax court declined to enter judgment on the pleadings for the Commissioner due to the materiality of Bush's allegation that he was denied a business deduction to which he was entitled. Instead, the tax court sua sponte construed the Commissioner's motion as a motion to dismiss for failure to state a claim. See Lefebvre v. Commissioner, 830 F.2d 417, 419 (1st Cir. 1987) (Tax Court Rule 120 motion for judgment on the pleadings treated as Fed. R. Civ. P. 12(c) motion for judgment on the pleadings). See also Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979) (mere fact the motion was couched in the terms of a judgment on the pleadings does not prevent the court from disposing of the motion by dismissal rather than by judgment)
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