Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

Ronald W. MILLER, Petitioner-Appellant,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee.

No. 90-70457.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


Ronald W. Miller appeals pro se the tax court's imposition of a $3,000 penalty against him for filing a frivolous petition pursuant to 26 U.S.C. § 6673. We have jurisdiction under 26 U.S.C. § 7482(a), and we affirm.

* Facts

Miller's first petition to the tax court consisted of patently frivolous contentions which the tax court properly rejected. The tax court then gave Miller 30 days in which to file an amended petition or face dismissal of his petition. The court told Miller that his petition was frivolous and warned him that he faced sanctions under 26 U.S.C. § 6673. Miller's amended petition reasserted and expanded on the frivolous allegations contained in his first petition. The tax court dismissed his petition and imposed a $3,000 penalty on Miller for filing a frivolous petition. Miller timely appeals.


Standard of Review

We review the tax court's imposition of penalties under 26 U.S.C. § 6673 for an abuse of discretion. See Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir. 1986).



On appeal, Miller contends that the tax court abused its discretion in imposing sanctions against him because the court did not give him a detailed explanation of why the petition was frivolous and because Miller, who is pro se, relied on professional advice for his position. This contention lacks merit.

Section 6673 of Title 26, in pertinent part, provides:

Whenever it appears to the Tax Court that proceedings before it have been instituted or maintained by the taxpayer primarily for delay, that the taxpayer's position in such proceedings is frivolous or groundless, or that the taxpayer unreasonably failed to pursue available administrative remedies, damages in an amount not in excess of $5,000 shall be awarded to the United States by the Tax Court in its decision.

We have held that taxpayers, even if they are appearing pro se, must abide by the rules of the court. Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986); see Swimmer v. INS, 811 F.2d 1343, 1345 (9th Cir. 1987) (" [i]gnorance of court rules does not constitute excusable neglect, even if the litigant appears pro se "). Moreover, in the context of section 6673 penalties, we have held that the tax court is not required to warn the taxpayer that such a penalty could be imposed. Carter, 784 F.2d at 1009.

Here, Miller's amended petition persisted in raising arguments which have been repeatedly held to be frivolous. See, e.g., Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) (wages are income and paying income tax is not voluntary); Scar v. Commissioner, 814 F.2d 1363, 1367 (9th Cir. 1987) ("no particular form is required for a valid notice of deficiency, ... and the Commissioner need not explain how the deficiencies were determined"). Furthermore, the tax court warned Miller that he faced imposition of a section 6673 penalty if he continued to advance these frivolous claims. Cf. Carter, 784 F.2d at 1009 (section 6673 penalty may be imposed without prior warning).

Given these circumstances, the tax court did not abuse its discretion in imposing a section 6673 penalty, even if Miller's position was based on "professional advice." See id.; Grimes, 806 F.2d at 1454; Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir. 1985).


Appellate Sanctions

The Commissioner of Internal Revenue requests sanctions against Miller for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox, 848 F.2d at 1008-09 ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted).

Miller's claims are without merit. In exercise of our discretion, however, we decline to impose sanctions.



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