Unpublished Disposition, 902 F.2d 42 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 42 (9th Cir. 1990)

No. 89-70079.

United States Court of Appeals, Ninth Circuit.

April 25, 1990.

Before CANBY, LEAVY, Circuit Judges, and E. DEAN PRICE,**  District Judge.

MEMORANDUM*** 

Orian E. Wright and Mary M. Wright (the Wrights) appear pro se to appeal a decision of the Tax Court granting summary judgment to the Commissioner of Internal Revenue and awarding damages of $5,000 for filing a frivolous petition pursuant to 26 U.S.C. § 6673.1  The Wrights failed to file valid income tax returns for the year 1982. In 1983, Mrs. Wright failed to file a return at all.

We affirm the order of the tax court granting summary judgment to the Commissioner dated November 23, 1988, for the reasons stated in the memorandum sur order. We also affirm the award of $5,000 for the filing of a frivolous petition.

The Wrights present arguments for the first time on appeal. We may consider an argument not raised in the tax court only if it is based on a change in the law or if it is an issue of law not dependent on a factual record developed by the parties. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). Neither situation applies here.

Sanctions are imposed on the appellants for bringing a frivolous appeal. Trohimovich v. C.I.R., 776 F.2d 873, 875-76 (9th Cir. 1985). Pursuant to Fed.R.App.Pro. 38, damages of $1500 are awarded to the Commissioner of Internal Revenue. See id. at 876 (imposing sanctions of $500 and double costs).2 

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Hon. E. Dean Price, United States District Judge for the Eastern District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Section 6673(a) states in part:

Whenever it appears to the Tax Court that ... the taxpayer's position in such proceeding is frivolous or groundless ... damages in an amount not in excess of $5,000 shall be awarded to the United States by the Tax Court in its decision.

 2

We note this is the second time the Wrights have been so sanctioned. In a prior tax case we imposed sanctions in CA Nos. 83-6404 and 83-6405, filed August 8, 1984

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