Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

MEMORANDUM^** 

Jerry R. White appeals pro se the district court's revocation of his probation. The district court found that White had violated the special terms of his probation which required him to timely file personal income tax returns with the Internal Revenue Service (IRS), as required by law, and provide copies to the Department of Probation. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

* Background

In 1987, White was convicted on five counts of Failure to File Tax Returns in violation of 26 U.S.C. § 7203. On the first count, the district court sentenced White to one year in custody of the Attorney General. On counts two through five, the court imposed a suspended sentence and placed White on three years probation. In addition to the general terms of probation, the court imposed the following special terms: (1) White was to cooperate with the IRS regarding his tax liabilities; and (2) White was to timely file personal income tax returns with the IRS, as required by law, and provide copies to the Department of Probation.

In 1989, a petition for probation revocation was filed alleging that White had failed to comply with the special terms of his probation. After a probation revocation hearing, the district court found that White had violated the terms and conditions of his probation by failing to file a personal income tax return. The court revoked his probation and sentenced White to one year in custody of the Attorney General for each of the counts two through five. The sentences are to run concurrently with each other and consecutively to the one-year sentence in the first count.

II

Standard of Review

We review the district court's revocation of probation for an abuse of discretion. See United States v. Daly, 839 F.2d 598, 599-600 (9th Cir. 1988).

III

Merits

White contends that there is no law requiring him, as "a sovereign citizen of the state of Nevada," to file income tax returns, and therefore, the district court "overstepped the bounds of Constitutionally granted authority" when it ordered him, as a special condition of his probation, to file income tax returns as required by law. This contention lacks merit.

The IRS is statutorily authorized to impose an income tax on United States citizens who reside in the United States and whose income is derived from domestic sources. See 26 U.S.C. § 1(c) (section 1(c) of the Code imposes an income tax on unmarried individuals); Treas.Reg. Sec. 1.1-1 (" [s]ection 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States") (emphasis added); Treas.Reg. Sec. 1.6012-1(a) (1) (i) ("an income tax return must be filed by every individual [with gross income above a certain minimum level who is a] citizen of the United States whether residing at home or abroad"); United States v. Nelson (In re Becraft), 885 F.2d 547, 548 (9th Cir. 1989) ("the Supreme Court and the lower federal courts have both implicitly and explicitly recognized the Sixteenth Amendment's authorization of ... [an] income tax on United States citizens residing in the United States and thus the validity of the federal income tax laws as applied to such citizens" (emphasis added, citations omitted)) ; see also Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) (federal income tax system is not a voluntary system). Thus, White's contention that there is no law which requires him to file a federal income tax return is wholly without merit. Accordingly, the district court did not overstep its authority by requiring White to file income tax returns as a condition of his probation.

In his reply brief, White asserts for the first time that the Office of Management and Budget (OMB) control number on the Form 1040 is improper, and therefore, he cannot be required to submit a Form 1040 or penalized for failure to do so. Because White did not raise this issue in his opening brief, we need not consider the issue. See Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1332 (9th Cir. 1981).¹ 

AFFIRMED.