Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

MEMORANDUM^** 

John P. Ladika appeals, pro se, the Tax Court's grant of the Commissioner of Internal Revenue's (CIR) motion to dismiss Ladika's petition for redetermination of deficiencies and additions to tax assessed by the CIR. The Tax Court found that Ladika's petition failed to allege any specific assignments of error in the CIR's calculation of Ladika's tax deficiency, as required under Tax Court Rule 34(b) (4). We affirm the Tax Court's decision, as well as its imposition of damages pursuant to 26 U.S.C. § 6673, but decline to award the sanctions requested by the CIR pursuant to Fed. R. App. P. 38, and 28 U.S.C. § 1912.

We review de novo the Tax Court's grant of a motion to dismiss. See Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988).

Rule 34(b) (4) of the Tax Court Rules of Practice and Procedure requires that the petitioner give clear and concise assignments of each error allegedly committed by the CIR in its determination of the deficiency or liability. 26 U.S.C. § 7453 Tax Ct.R. 34(b) (4).

Ladika failed to allege any specific errors that the CIR made in computing the amount of tax deficiency. Instead, Ladika alleged in his petition that as "an american [sic] worker on the american [sic] market, not living abroad," he was exempt from any "direct unapportioned [income] tax." Ladika also alleged that the CIR's failure to provide him with an administrative hearing prior to issuing its notice of deficiency violated due process. Not only are these arguments meritless, they also fail to meet the requirements of Tax Court Rule 34(b) (4). See 26 U.S.C. § 1(c) (section 1(c) of the Internal Revenue Code (Code) imposes an income tax on unmarried individuals); 26 C.F.R. Sec. 1.1-1 (" [s]ection 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States") (emphasis added); Wilcox, 848 F.2d at 1008 (Tax Court properly dismissed a petition, under Tax Court Rule 34(b) (4), from a taxpayer who alleged that wages are not income subject to federal income tax and that failure to provide an administrative hearing prior to issuing a notice of deficiency was a violation of due process).

Ladika argues for the first time on appeal that, given his pro se status, his petition sufficiently specified the assignments of error. Although it is true that pro se pleadings are construed more liberally, Ladika's contention is without merit. See Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987) (pro se litigant must still abide by the court rules). Ladika also contends that the Administrative Procedure Act (APA) entitles him to a full hearing on his claim. Section 554(a) (1) of the APA, however, provides that the APA does not apply to matters "subject to subsequent consideration of the law and facts de novo in a court." Thus, this contention is too without merit. Accordingly, we affirm the Tax Court's dismissal of Ladika's petition for failure to comply with the Tax Court's Rules of Practice and Procedure.

"The Tax Court may impose a penalty [, not to exceed $5,000,] on a taxpayer ... for bringing an action which is frivolous or groundless." Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir. 1985) (per curiam) (citing 26 U.S.C. § 6673). We review the Tax Court's imposition of damages pursuant to section 6673 of the Code for abuse of discretion. Id.

Here, The Tax Court found that Ladika's claims were frivolous and awarded the CIR $5,000 in damages pursuant to section 6673 of the Code. Because we agree that Ladika's contentions are frivolous, we find that the Tax Court did not abuse its discretion by imposing damages on him.

The CIR requests sanctions against Ladika for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox, 848 F.2d at 1008-09 ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted). Ladika's claims are wholly without merit. In exercise of our discretion, however, we decline to impose sanctions.

AFFIRMED.