Unpublished Dispositionjames R. Dolson, Plaintiff-appellant, v. the Secretary of Treasury and the United States of America,plaintiffs-appellees, 791 F.2d 932 (6th Cir. 1986)

This matter is before the Court upon consideration of plaintiff's appeal from the district court's judgment dismissing his tax protestor complaint. The case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and the parties' briefs, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff filed amended tax returns for the taxable years of 1980 and 1981, reducing his 1980 gross income from $20,667.00 to zero and his 1981 gross income from $30,564.00 to $467.00, reporting that no tax was due for either year because wages are not income. The Government determined the returns to be frivolous, and hence, assessed penalties for each return pursuant to 26 U.S.C. § 6702. Plaintiff unsuccessfully challenged the assessments pursuant to 26 U.S.C. § 6703. Thereafter, he filed two complaints in the district court alleging that Sec. 6702 is unconstitutional because it denies due process and violates the separation of powers doctrine. The complaints were eventually consolidated by the Court for purpose of review. The district court held that the matter lacked a genuine issue of material fact and therefore granted defendants' motion for summary judgment. Plaintiff timely appealed.

Upon consideration, this Court finds that the district court's judgment must be affirmed. A review of the record discloses that plaintiff's amended returns contained information that was substantially incorrect because wages are income. Brushaber v. Union Pacific Railroad and Company, 240 U.S. 1 (1916); Perkins v. Commissioner of Internal Revenue, 746 F.2d 1187 (6th Cir. 1984). Moreover, 26 U.S.C. § 6702 is in full compliance with the federal constitution and does not violate the separation of powers doctrine or due process. See Bob Jones University v. Simon, 416 U.S. 725 (1974); Brennan v. Comm'r of Internal Revenue, 752 F.2d 187 (6th Cir. 1985); Heitman v. United States, 753 F.2d 33 (6th Cir. 1984). The Executive Branch of the Government can assess and collect taxes without prior administrative or judicial review so long as an adequate opportunity is afforded later for a judicial determination of liability. See Bob Jones University, supra; Brennan, supra; Heitman, supra. 26 U.S.C. § 6703.

It is therefore ORDERED that the district court's judgment be and hereby is affirmed. Rule 9(d) (3), Rules of the Sixth Circuit.