David Loven Nelson v. Commissioner of IRS , 540 F. App'x 924 ( 2013 )

Case: 13-11581 Date Filed: 09/26/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11581
Non-Argument Calendar
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Agency No. 21102-10
DAVID LOVEN NELSON,
Petitioner-Appellant,
versus
COMMISSIONER OF IRS,
Respondent-Appellee.
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Petition for Review of a Decision of the
U.S.Tax Court
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(September 26, 2013)
Before DUBINA, HULL and JORDAN, Circuit Judges.
PER CURIAM:
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Appellant David Nelson appeals pro se the tax court’s decision upholding
the Commissioner of the Internal Revenue Service’s (“the Commissioner”)
deficiency determinations for tax years 2005 and 2008. According to the
Commissioner, Nelson had a tax deficiency in 2005 of $40,153, and was assessed
penalties of: (1) $9,034.43 under I.R.C. § 6651(a)(1); (2) $1,610.62 under
§ 6654(a); and (3) $9,837.49 under § 6651(a)(2). In 2008, Nelson’s tax deficiency
was $86,440, and he was assessed penalties of: (1) $12,112.20 under § 6651(a)(1);
and (2) $3,499.08 under § 6651(a)(2). The record shows that, during the years in
question, Nelson’s tax returns indicated that his wages were zero and that his
occupation was “American citizen.” However, Nelson was employed by
Northwest Airlines as a pilot and earned wages of $154,749.00 in 2005, and
$264,640.00 in 2008.
Nelson argued before the tax court that he did not receive “wages” because
his activities did not constitute “employment,” as those terms are defined in the
Internal Revenue Code. He claimed that, during 2005 and 2008, he did not have
any taxable income because he did not perform a “service” (1) within the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American Samoa,
(2) on or in connection with an American vessel or aircraft under a contract of
service entered into within the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, or American Samoa, (3) for the United States or any instrumentality
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thereof. Thus, he asserted that he did not earn “wages” based on, inter alia, the
definitions of “employment” and “employee” in 26 U.S.C. §§ 3121 and 3401(c).
The tax court rejected Nelson’s arguments as frivolous, upheld the Commissioner’s
deficiency determinations, and sua sponte imposed a $2,000 sanction against
Nelson. On appeal, Nelson again argues that, in 2005 and 2008, he was not
engaged in any activities subject to federal employment taxation, as defined in
§ 3121(b). He concedes that he was paid for his work at Northwest Airlines and
essentially contends that the issue on appeal is whether his pay from 2005 and
2008 constitutes wages from “employment.”
Section 1 of the Internal Revenue Code imposes a tax on the “taxable
income” of every individual. 26 U.S.C. § 1(a)-(d); see also 26 U.S.C. § 3101(imposing FICA taxes on “every individual”). Taxable income is gross income
minus allowable deductions. 26 U.S.C. § 63(a). “[G]ross income means all income
from whatever source derived, including (but not limited to) . . . [c]ompensation
for services.” 26 U.S.C. § 61(a)(1). “Wages” include “all remuneration for
employment.” 26 U.S.C. § 3121(a). “Employment” is defined as “any service, of
whatever nature, performed by an employee for the person employing him,
irrespective of the citizenship or residence of either, within the United States.” Id.§ 3121(b)(A)(i) (emphasis added).
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Undisputedly, Nelson worked for Northwest Airlines as a pilot and received
“wages” for his work. Indeed, Nelson concedes that he was paid in exchange for
his services. Nelson’s wages, as compensation for services, constituted taxable
gross income. See 26 U.S.C. §§ 1(a)-(d), 61(a)(1), 63(a). Further, Nelson’s work
for Northwest constitutes “employment” within § 3121(b), because his service was
performed within the United States, irrespective of the citizenship or residence of
either party. See id. § 3121(b)(A)(i). Nelson’s reading of the statute wholly
ignores subsection (i), which defines “employment” as service between an
employer and employee within the United States. We have repeatedly rejected
arguments, such as Nelson’s, asserting that private sector employment income is
not subject to federal taxation. See United States v. Morse, 532 F.3d 1130,
1132-33 (11th Cir. 2008); Motes v. United States, 785 F.2d 928, 928 (11th Cir.
1986). Thus, we affirm the tax court’s determination.
Moreover, we have imposed sanctions, even against pro se litigants, for
maintaining such frivolous arguments after being warned that the arguments are
frivolous. See Morse,532 F.3d at 1133; Motes, 785 F.2d at 728. Nelson has
previously been warned, both by the tax court and by this Court, that his arguments
are frivolous. See Nelson v. United States, 392 F. App’x 681, 682-83 (11th Cir.
2010) (unpublished). Further, Nelson’s reply brief was filed 24 days after the
Commissioner filed a motion for sanctions, affording Nelson a “reasonable
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opportunity to respond” to the motion in his brief. See Fed.R.App.P. 38. In
addition, the docket sheet shows that Nelson has made no separate response to the
Commissioner’s motion. Accordingly, we conclude that sanctions are appropriate,
and we will enter a separate order granting the Commissioner’s motion for
sanctions.
AFFIRMED.
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