USCA11 Case: 21-11576 Date Filed: 10/05/2021 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11576
Non-Argument Calendar
____________________
BRIAN D. SWANSON,
Petitioner-Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
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2 Opinion of the Court 21-11576
____________________
Petition For Review of a Decision of the
U.S. Tax Court
Agency No. 6837-20
____________________
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Brian Swanson, a taxpayer proceeding pro se, appeals from
the U.S. Tax Court’s order determining that he owed $19,578 in
income tax because of a deficiency from 2017. The Commissioner
of the Internal Revenue Service (Commissioner), in turn, moves
for summary affirmance of the Tax Court’s order and for sanctions
against Swanson in the amount of $8,000. Alternatively, the
Commissioner moves to suspend briefing while the motion for
summary affirmance is pending.
We will address the Commissioner’s motion for summary
affirmance first, followed by the motion for sanctions.
I.
Summary disposition is appropriate, in part, where “the
position of one of the parties is clearly right as a matter of law so
that there can be no substantial question as to the outcome of the
case, or where, as is more frequently the case, the appeal is
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21-11576 Opinion of the Court 3
frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162
(5th Cir. 1969). 1
The Constitution prohibits the imposition of direct taxes
unless they are apportioned according to the census. U.S. Const.
Art. I, § 9, cl. 4. A “direct tax” is one levied directly on property
because of its ownership, while an “indirect tax” is levied on the
“use” of property. Brushaber v. Union Pac. R.R. Co.,
240 U.S. 1, 14
(1916). However, the Sixteenth Amendment provides that
“Congress shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the
several States, and without regard to any census or enumeration.”
U.S. Const. amend. XVI (emphasis added). In Brushaber, the
Supreme Court recognized that the Sixteenth Amendment
authorizes a direct, non-apportioned income tax upon United
States citizens throughout the country. See Brushaber,
240 U.S. at
12-19. Specifically, the Supreme Court explained that the Sixteenth
Amendment’s purpose was to relieve income taxes, although they
were direct taxes, from the apportionment requirement and from
consideration of the source of the income.
Id. at 18-19.
Accordingly, arguments “that wages are not taxable
income . . . . have been rejected by courts at all levels of the
judiciary and are patently frivolous.” Stubbs v. Comm’r of Internal
1 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to close of business on September 30, 1981.
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4 Opinion of the Court 21-11576
Revenue Serv.,
797 F.2d 936, 938 (11th Cir. 1986). For example, we
have specifically held as frivolous the following arguments:
that [taxpayers’] wages are not income subject to tax
but are a tax on property such as their labor; that only
public servants are subject to tax liability; [and] that
withholding of tax from wages is a direct tax on the
source of income without apportionment in violation
of the Sixteenth Amendment . . . .
Motes v. United States,
785 F.2d 928, 928 (11th Cir. 1986).
Consequently, in a nonbinding, unpublished opinion in another
appeal by Swanson, we concluded that the argument he raised in
that appeal ⸺ that his salary was not taxable as income ⸺ was
frivolous under our precedent. Swanson v. United States, 799 F.
App’x 668, 670 (11th Cir. 2020) (unpublished).
Here, Swanson raises a different argument, that the federal
income tax is unconstitutional because it is a direct tax without
apportionment. Nevertheless, it, too, is frivolous under our
precedent. See Motes,
785 F.2d at 928. The Supreme Court has
held the Sixteenth Amendment authorizes a direct, non-
apportioned income tax upon United States citizens. See
Brushaber,
240 U.S. at 12-19. Consequently, Swanson’s argument
his employment earnings are excluded from his gross income
because the Constitution does not allow for direct, non-
apportioned taxes to be imposed on taxable income is foreclosed in
light of Brushaber. See
id.
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21-11576 Opinion of the Court 5
Therefore, because Swanson’s appeal is frivolous, we
GRANT the government’s motion for summary affirmance. See
Groendyke Transp., Inc.,
406 F.2d at 1162.
II.
Federal Rule of Appellate Procedure 38 allows a court of
appeals, after a separately filed motion and reasonable opportunity
to respond, to award damages and single or double costs to an
appellee if the court determines that the appeal is frivolous. Fed.
R. App. P. 38. Although we generally prefer that the government
establish its costs and attorney’s fees by affidavit, we have
previously granted the government’s motion for lump sum
sanctions in the interest of judicial economy. See, e.g., King v.
United States,
789 F.2d 883, 884-85 (11th Cir. 1986); see also Stubbs,
797 F.2d at 938-39. We explained that “this procedure is [in the
appellant’s] interest since he would be liable for the additional costs
and attorney’s fees incurred during any proceedings on remand.”
King,
789 F.2d at 884-85.
Additionally, we have previously warned appellants seeking
to argue that their wages are not taxable income “that they may be
expected to have sanctions imposed against them if they continue
to raise these sorts of frivolous contentions.” Hyslep v. United
States,
765 F.2d 1083, 1084-85 (11th Cir. 1985). In fact, in the
unpublished opinion in Swanson’s previous appeal, we concluded
that Rule 38 sanctions were appropriate because (1) Swanson’s
arguments were frivolous, and (2) he had been warned about their
frivolity through our precedent and the district court’s express
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statement that his position was frivolous. Swanson, 799 F. App’x
at 671-72. Accordingly, we granted the government’s motion and
awarded a lump sum of $8,000 in sanctions.
Id. at 672. Further, we
have previously granted the government’s motion for lump sum
sanctions of $8,000 in another frivolous tax appeal. See Herriman
v. Comm’r of Internal Revenue Serv., 521 F. App’x 912, 914 (11th
Cir. 2013) (unpublished).
As discussed above, Swanson’s arguments in this appeal
have already been held to be frivolous. As to whether his pursuit
of this appeal warrants sanctions, Swanson was previously
sanctioned for raising similar frivolous arguments. See Swanson,
799 F. App’x at 671-72. Similarly, the Tax Court expressly warned
him that his position was frivolous when denying his motion for
summary judgment. In light of these warnings, particularly his
previous appeal, Rule 38 sanctions are appropriate.
Thus, we GRANT the government’s motion for sanctions
and award $8,000 in sanctions. Accordingly, we DENY all pending
motions and petitions as moot.
