Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 280 (9th Cir. 1990)

Harold A. HALDANE, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

NO. 90-35393.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


Harold A. Haldane appeals pro se the district court's sua sponte dismissal of his action as frivolous pursuant to 28 U.S.C. § 1915(d). Haldane filed this action for wrongful levy pursuant to 26 U.S.C. § 7426, seeking an injunction restraining the Internal Revenue Service from further levies against his pension, and damages for "fraudulent taxes paid by the Plaintiff since 1946." We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and affirm.

Haldane contends that he is not a taxpayer and that wages are not income. We have rejected this contention as frivolous numerous times, and do so again here. See, e.g., Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988).

Moreover, Haldane may not assert an action for wrongful levy under section 7426 because such actions are only available to persons other than the taxpayer against whom the tax has been assessed. See Shannon v. United States, 521 F.2d 56, 59 (9th Cir. 1975), cert. denied, 424 U.S. 965 (1976). In this case, Haldane is the person against whom the tax was assessed.

A frivolous claim is one which lacks an arguable basis in either law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). Pursuant to section 1915(d), district courts have the power to dismiss frivolous in forma pauperis complaints sua sponte before issuing and serving process upon the defendants. See Jackson, 885 F.2d at 640. Because Haldane's complaint lacks an arguable basis in law, his claim is frivolous. Moreover, it is absolutely clear that amendment would not cure the deficiencies of the complaint. Accordingly, the district court did not err in dismissing the action as frivolous. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Jackson, 885 F.2d at 640.

The government requests that sanctions be imposed upon Haldane for bringing a frivolous appeal. An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox v. Commissioner, 848 F.2d 1007, 1009 (9th Cir. 1988). We hold that Haldane's appeal is frivolous, and impose sanctions upon Haldane in the amount of $1,500. See Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox, 848 F.2d at 1008-09.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


On July 5, 1990, Haldane filed a motion for preliminary injunction in this court seeking to restrain appellees from further attempting to collect his assessed tax deficiencies. The motion was denied on August 20, 1990, and Haldane subsequently filed a motion to reconsider. Because Haldane's claims are frivolous, we deny the motion to reconsider