Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1988)

MEMORANDUM^** 

Maurice and Christine Evans appeal pro se the tax court's dismissal of their petition for redetermination. The Evanses contend that 1) their petition alleged sufficient facts to state a claim, 2) due process required the tax court to hold a hearing before dismissing their claim, and 3) the tax court should not have imposed a penalty pursuant to 26 U.S.C. § 6673. We affirm.

The petition consisted of conclusory allegations that the Commissioner arbitrarily had overstated their tax liability and violated their constitutional rights. These allegations did not satisfy the Evanses' burden to plead clear assignments of error and statements of fact that call the Commissioner's determination into question. See Tax Court Rule 34(b); Grimes v. Commissioner, 806 F.2d 1451, 1453-54 (9th Cir. 1986) (per curiam); Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir. 1985). Because the Evanses failed to state a claim on which relief could be granted, due process did not require a formal hearing. See Nunley v. Commissioner, 758 F.2d 372, 373 (9th Cir. 1985) (per curiam). The tax court did not abuse its discretion in imposing a $5,000 penalty. The Evanses' allegations were not only non-justiciable, but frivolous. See Grimes, 806 F.2d at 1454 ($5,000 penalty). The Evanses do not refute the tax court's conclusion that they initiated proceedings "primarily for delay." 26 U.S.C. § 6673.

On appeal the Evanses argue that the Internal Revenue Service improperly has classified their wage earnings as income. If we were to consider this shopworn argument we almost certainly would impose sanctions. In the past we repeatedly have rejected the notion that wages are not income. See Carter v. Commissioner, 784 F.2d 1006, 1009 (9th Cir. 1986). Because the Evanses did not raise this argument below, however, we disregard it. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985). We decline to impose sanctions on appeal.

AFFIRMED.