United States v. Stuart B. Hodges ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 28, 2007
No. 07-10791 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00758-CV-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STUART B. HODGES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 28, 2007)
Before BARKETT, MARCUS and WILSON , Circuit Judges.
PER CURIAM:
Stuart B. Hodges, pro se, appeals the district court’s order granting the
government’s petition to enforce the Internal Revenue Service (“IRS”) summons
against Hodges, pursuant to 26 U.S.C. §§ 7402(b), and 7406(a), and denying his
motion to dismiss. We affirm.
As an initial matter, Hodges’ argument that the tax laws are not “positive
law” is meritless. Although Title 26 of the United States Code may not have been
enacted into positive law, Hodges has not established that there are any
inconsistencies between the United States Code and the tax Statutes at Large.
Hodges’ argument that he was denied access to an Article III court because the
magistrate conducted the hearing is also without merit because the district court
made the ultimate decision to grant the government’s petition and deny Hodges’
motion.
We reject the argument that the district court did not have personal
jurisdiction over Hodges and violated Hodges’ due process and equal protection
rights because Hodges admits he is a citizen of Georgia and is domiciled in
Georgia. In addition, the record refutes Hodges’ arguments that the district court
and the magistrate judge ignored his contentions regarding personal jurisdiction.
The district court had jurisdiction over the petition pursuant to § § 7402(b) and
7604(a), and it did not err when it granted the government’s petition to enforce the
IRS tax summons. The IRS satisfied their initial minimal burden for enforcement
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when it presented the sworn affidavit of the IRS Officer who attested that: (1) the
summons was issued in pursuit of the investigation into Hodges’ tax liability for
the years 1998, 1999, 2000, and 2001; (2) the books, papers, records, or other data
sought by the summons were not already in the IRS’s possession; (3) the material
was necessary to the investigation; and (4) the IRS took all required administrative
steps prior to the issuance of the summons. Hodges’ arguments that he is not
subject to the income tax laws and that the IRS and district court lacked
jurisdiction are frivolous and without merit. Further, Hodges waived the argument
that the magistrate judge should have recused himself because he did not raise that
issue in the district court.
Based upon the foregoing and our review of the record and the parties’
briefs, we conclude that the district court did not err when it denied Hodges’
motion to dismiss and granted the government’s petition to enforce an IRS tax
summons against Hodges.
AFFIRMED.
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