Unpublished Dispositionorbert J. O'brien, Petitioner-appellant, v. Commissioner of Internal Revenue, Respondent-appellee, 779 F.2d 52 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 779 F.2d 52 (6th Cir. 1985) 10/25/85




BEFORE: KENNEDY and MILBURN, Circuit Judges; and COOK, District Judge.* 

O'Brien petitions pro se for review of the Tax Court's decision in this case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

O'Brien filed a tax return which listed no income even though it was accompanied by a W-2 form showing that O'Brien had received $20,000 in income for that year. The Commissioner sent a notice of deficiency to O'Brien, and he petitioned the Tax Court for review. The Tax Court granted summary judgment to the Commissioner and awarded $5,000 in damages to the Commissioner under 26 U.S.C. § 6673.

O'Brien raises four issues for review: 1) that wages received for services are not taxable income, 2) that federal reserve notes are not backed by gold and silver and therefore cannot be income, 3) that the tax code is not positive law, and 4) that the Tax Court itself is unconstitutional. The positive law argument is clearly frivolous on its face; the remaining arguments are frivolous in light of the prior case law. Perkins v. Commissioner, 746 F.2d 1187, 1188 (6th Cir. 1984); Jones v. Commissioner, 688 F.2d 17, 18 (6th Cir. 1982); Redhouse v. Commissioner, 728 F.2d 1249, 1253 n.2 (9th Cir.), cert. denied, ---- U.S. ----, 105 S. Ct. 506 (1984); Crain v. Commissioner, 737 F.2d 1417, 1418 (5th Cir. 1984).

The Tax Court was clearly correct to award $5,000 in damages against O'Brien for his frivolous petition. Moreover, because we find that this appeal is also frivolous, we award double costs to the Commissioner. Rule 38, Federal Rules of Appellate Procedure.

The appeal is dismissed as frivolous under Rule 9(d) (2), Rules of the Sixth Circuit. Double costs are awarded to the Commissioner.


The Honorable Julian A. Cook, Jr., U.S. District Judge for the Eastern District of Michigan, sitting by designation