Kerwin James Miller; Mona Lea Miller, Appellants, v. Timothy Sherrill, in Private Capacity, Appellee, 146 F.3d 1051 (8th Cir. 1998)

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US Court of Appeals for the Eighth Circuit - 146 F.3d 1051 (8th Cir. 1998) Argued June 4, 1998. Decided July 2, 1998

Theodore M. Doolittle, Ann B. Durney, on the brief, for Appellee.

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.


Kerwin James Miller and Mona Lea Miller sued Internal Revenue Service employee Timothy Sherrill, alleging Sherrill violated their constitutional rights in connection with his tax-collection efforts by filing a "frivolous" tax lien. The district court1  granted Sherrill's motion to dismiss the complaint for failure to state a claim, and the Millers appeal. In their pro se appellate brief, the Millers argue at length that the existence of uncertainty surrounding federal income tax laws and the nature of income, specifically concerning whether the federal income tax is an unconstitutional direct tax which must be apportioned, creates a due process problem in the enforcement of the tax code. They also question whether the tax code applies to them.

After reviewing the record, we conclude that there is no basis for the Millers' action against Sherrill. We note that 26 U.S.C. § 7433 provides the Millers' exclusive remedy for the reckless or intentional disregard of the Internal Revenue Code with respect to collection activities, and the Millers did not state a claim. We therefore affirm the judgment of the district court. We also grant Sherrill's motion for sanctions in the amount of $500 because arguments similar to those asserted by the Millers on appeal have been rejected repeatedly by the courts, see United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) (per curiam), cert. denied, 510 U.S. 1193, 114 S. Ct. 1300, 127 L. Ed. 2d 652 (1994). See Fed. R. App. P. 38.


The Honorable John B. Jones, United States District Judge for the District of South Dakota