Unpublished Disposition, 902 F.2d 40 (9th Cir. 1988)

MEMORANDUM^** 

Evelyn E. Mikelson appeals pro se the Tax Court's decisions upholding the Commissioner of Internal Revenue's (CIR) determinations of tax deficiencies and penalties against Mikelson and imposing damages against her for filing a frivolous appeal. We have jurisdiction pursuant to 26 U.S.C. § 7482. We affirm and impose sanctions against Mikelson for pursuing a frivolous appeal.

On April 15, 1988 the CIR issued separate notices of deficiency to Mikelson for tax years 1983 and 1984, respectively. The CIR issued a third notice on June 24, 1988 relating to tax year 1985. Mikelson contends that she was not required to file tax returns for those years because her employer filed a Form W-2 That number, however, in fact corresponds to Treas.Reg. Sec. 1.6012-1(a) (6) (1989), which requires taxpayers to submit the Form 1040. See Treas.Reg. Sec. 602.101(c) (1989). The OMB control number on Form 1040 thus was proper, and Mikelson was required to complete and submit the form.

In her Reply Brief, Mikelson asserts for the first time that the CIR discriminated against her by labeling her an "illegal tax protestor." We do not consider this issue. Mikelson waived the issue by her failure to raise it in her opening briefs. Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1332 (9th Cir. 1981).

The Tax Court may impose damages against a taxpayer pursuant to 26 U.S.C. § 6673 if it appears that the suit is frivolous or maintained primarily for delay. Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir. 1986). We review the Tax Court's imposition of damages for abuse of discretion. Id.

As we have already noted, Mikelson's arguments before this court are frivolous. In addition, Mikelson's arguments before the Tax Court that she deserved notice and a hearing before issuance of a notice of deficiency and that she is not subject to income tax were also frivolous. See Rapp v. C.I.R., 774 F.2d 932, 936 (9th Cir. 1985); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981). The Tax Court did not, therefore, abuse its discretion by finding that Mikelson's suit was frivolous and awarding damages against her.

The CIR asks this court to impose sanctions on Mikelson for pursuing a frivolous appeal. We have discretion to impose sanctions pursuant to 28 U.S.C. § 1912 and Fed. R. App. P. 38, even where the appellant appears pro se. See Grimes, 806 F.2d at 1454. Sanctions are appropriate when the appeal is frivolous, i.e., the result is obvious or the arguments are "wholly without merit." Wilcox v. C.I.R., 848 F.2d 1007, 1009 (9th Cir. 1988). Because Mikelson's arguments before this court are frivolous, we impose sanctions against her in this appeal in the additional amount of $1500.

AFFIRMED WITH SANCTIONS.