Cheryl M. Fealy, Plaintiff-appellant, v. United States of America, Defendant-appellee, 2 F.3d 1156 (9th Cir. 1993)

MEMORANDUM^** 

Cheryl M. Fealy appeals pro se the district court's dismissal of her action seeking the return of money withheld from her wages during 1982 through 1986 and money paid to a bankruptcy trustee. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's dismissal of a complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6). Oscar v. University Students Co-operative Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 113 S. Ct. 655 (1992). We affirm.

Fealy's sole contention on appeal is that because she is not a "taxpayer" and her labor is not a taxable activity, the government lacked authority to tax her wages. She argues that the constitution guarantees that a person who "lawfully contract [s] one's labor ... for lawful compensation cannot [be] taxed." This court has previously rejected the argument that wages are not income subject to income tax. See, e.g., Maisano v. United States, 908 F.2d 408, 409 (9th Cir. 1990); Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) ("wages are income"). Accordingly, the district court properly dismissed Fealy's complaint.

The government requests sanctions against Fealy for bringing this frivolous appeal. This court has discretion to impose damages against litigants, even those appearing pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1291; Wilcox, 848 F.2d at 1008-09 ($1,500 sanction imposed against pro se litigant for bringing a frivolous appeal). "An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit." Wilcox, 848 F.2d at 1009. Fealy's contentions are wholly without merit. In exercise of our discretion, however, we decline to impose sanctions.

AFFIRMED.