USCA11 Case: 23-11739 Document: 26-1 Date Filed: 08/30/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11739
Non-Argument Calendar
____________________
BRIAN D. SWANSON,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 1:22-cv-00119-JRH-BKE
____________________
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2 Opinion of the Court 23-11739
Before WILSON, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Brian Swanson, proceeding pro se, appeals from the district
court’s order dismissing for lack of subject matter jurisdiction and
failure to state a claim his pro se civil suit seeking a refund of income
taxes. Swanson argues that his wages received were not taxable
income. He also asserts that
26 U.S.C. § 1 violated the Uniformity
Clause and the tax imposed by § 1 was unconstitutional, first, be-
cause it was not a duty, impost or an excise, and second, because
gross income was calculated differently for American citizens living
in different geographical regions of the United States. He also
noted that American citizens who live in the Territories, like
Puerto Rico, were excluded from the federal income tax, and that
asking him to pay more federal income tax than other American
citizens based solely on geographical location was unfair and vio-
lated the constitutional rule for geographical uniformity.
The government, in turn, moves for summary affirmance
and for $8,000 in sanctions for Swanson’s maintaining frivolous ar-
guments for which he has twice been sanctioned before. We will
address the government’s motion for summary affirmance, fol-
lowed by the motion for sanctions.
I.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
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23-11739 Opinion of the Court 3
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158,
1161–62 (5th Cir. 1969). 1 A motion for summary affirmance post-
pones the due date for the filing of any remaining brief until we
rule on the motion. 11th Cir. R. 31-1(c).
We review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief
may be granted, “accepting the allegations in the complaint as true
and construing them in the light most favorable to the plaintiff.”
Leib v. Hillsborough Cnty. Pub. Transp. Comm’n,
558 F.3d 1301, 1305
(11th Cir. 2009). We also review questions of constitutional law de
novo. Kentner v. City of Sanibel,
750 F.3d 1274, 1278 (11th Cir. 2014).
We liberally construe pro se pleadings, holding them to a less strin-
gent standard than those prepared by attorneys. Miller v. Donald,
541 F.3d 1091, 1100 (11th Cir. 2008).
The United States has sovereign immunity from suit unless
it consents to be sued, and the statute consenting to suit defines the
district court’s jurisdiction to entertain the suit. Christian Coal. of
Fla., Inc. v. United States,
662 F.3d 1182, 1188 (11th Cir. 2011). A
district court has original jurisdiction to hear a civil action against
the United States “for the recovery of any internal-revenue tax
1 We are bound by decisions of the United States Court of Appeals for the
Fifth Circuit issued before October 1, 1981. Bonner v. City of Prichard,
661 F.2d
1206 (11th Cir. 1981) (en banc).
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4 Opinion of the Court 23-11739
alleged to have been erroneously or illegally assessed or collected,
or any penalty claimed to have been collected without authority or
any sum alleged to have been excessive or in any manner wrong-
fully collected under the internal-revenue laws.”
28 U.S.C.
§ 1346(a). However, before a taxpayer may bring such an action
against the Internal Review Service (IRS), the taxpayer must first
file an administrative claim with the IRS for a refund.
26 U.S.C.
§ 7422(a). To qualify as a tax return, a document must: (1) “purport
to be a return”; (2) “be executed under penalty of perjury”; (3) “con-
tain sufficient data to allow calculation of tax”; and (4) “represent
an honest and reasonable attempt to satisfy the requirements of the
tax law.” In re Justice,
817 F.3d 738, 740–41 (11th Cir. 2016).
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. The Internal Revenue Code provides that “gross in-
come means all income from whatever source derived,” followed
by a non-exhaustive list that includes compensation for services,
including fees, commissions, fringe benefits, and similar items, and
gross income derived from business.
26 U.S.C. § 61(a)(1), (2). Ar-
guments “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,
797 F.2d 936, 938 (11th Cir. 1986) (per curiam).
We have specifically held as frivolous “an arsenal of arguments,”
including:
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23-11739 Opinion of the Court 5
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 viola-
tion of the Sixteenth Amendment . . . .
Motes v. United States,
785 F.2d 928, 928 (11th Cir. 1986) (per cu-
riam); see also Biermann v. Comm’r,
769 F.2d 707, 708 (11th Cir. 1985)
(per curiam) (rejecting as frivolous the argument that wages are
not “income”). In Brushaber v. Union Pacific Railroad Co., the U.S.
Supreme Court recognized that the Sixteenth Amendment author-
izes a direct, non-apportioned income tax on United States citizens.
240 U.S. 1, 12–19 (1916).
The Uniformity Clause provides that “all Duties, Imposts
and Excises shall be uniform throughout the United States.” U.S.
Const. art. I, § 8, cl. 1. The Supreme Court has noted that “the
qualification of uniformity is imposed, not upon all taxes which the
Constitution authorizes, but only on duties imposts, and excises.”
Knowlton v. Moore,
178 U.S. 41, 88 (1900).
The Supreme Court has noted, in a case involving Supple-
mental Security Income (SSI), that Congress has not required resi-
dents of Puerto Rico to pay most federal income, gift, estate, and
excises taxes, and likewise, has not extended certain federal benefits
programs to residents of Puerto Rico. United States v. Vaello Madero,
142 S. Ct. 1539, 1541 (2022). The Court explained that the Terri-
tory Clause of the Constitution, Art. IV, § 3, cl. 2, affords Congress
broad authority to legislate with respect to the U.S. Territories. Id.
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6 Opinion of the Court 23-11739
The Court held that its precedents, as well as the constitutional text
and historical practice, established that Congress may distinguish
the Territories from the States in tax and benefits programs such as
SSI, so long as Congress has a rational basis for doing so. Id.
at 1542–43.
First, as to Swanson’s first argument on appeal, that his
wages as a school teacher are not taxable because they constitute a
return of capital, this argument is plainly frivolous, as we have rou-
tinely rejected such arguments as being frivolous. See Groendyke
Transp., Inc.,
406 F.2d at 1161–62; Motes,
785 F.2d at 928; Beirmann,
768 F.2d at 708. Therefore, Swanson’s argument that he properly
invoked the district court’s jurisdiction and established a plausible
claim for refund is meritless, as he failed to report all of his $86,317
in wages as taxable income, and, therefore, his return was not a
valid claim for refund. In re Justice,
817 F.3d at 740–41.
Second, Swanson’s argument that the income tax is uncon-
stitutional under the Uniformity Clause of the Constitution is also
frivolous. Groendyke Transp., Inc.,
406 F.2d at 1161–62. First, it is
not clear that the Uniformity Clause applies to income taxes, as the
Supreme Court has noted that the uniformity requirement is not
imposed on all taxes authorized by the Constitution, but only to
“duties, imposts and excises.” Knowlton,
178 U.S. at 88. Further,
Swanson’s reliance on the differential treatment of Puerto Rico is
misplaced. As he acknowledged in his brief, the majority opinion
in Vaello Madero still permits Puerto Rico to be treated differently
based on current precedent. Vaello Madero, 142 S. Ct. at 1541–43.
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23-11739 Opinion of the Court 7
Thus, because Swanson’s appeal is frivolous, we GRANT
the government’s motion for summary affirmance.
II.
Federal Rule of Appellate Procedure 38 allows a court of ap-
peals, after a separately filed motion and reasonable opportunity to
respond, to award just damages and single or double costs to an
appellee if the court determines that the appeal is frivolous. Fed. R.
App. P. 38; see also
28 U.S.C. § 1912 (providing that, when a judg-
ment is affirmed by the Supreme Court or a circuit court, the court
may exercise its discretion to award just damages to the prevailing
party for their delay, and single or double costs). In Waters v. Com-
missioner, we awarded double costs plus reasonable attorneys’ fees
against a pro se appellant who had raised the “patently frivolous”
argument that his wages were not income.
764 F.2d 1389, 1389–90
(11th Cir. 1985) (per curiam). In making the award, we noted that
(1) it was “well established and long settled that wages are includa-
ble in taxable income”; (2) the notice of deficiency warned the tax-
payer that his position was frivolous; (3) the Tax Court expressly
found that the taxpayer’s position was frivolous, and awarded dam-
ages; and (4) the Tax Court’s “opinion provided a detailed state-
ment of reasons and citations of authority.”
Id. at 1390.
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) (per curiam) (accepting the government’s
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8 Opinion of the Court 23-11739
representation of the amount of the average award in similar cases
because the taxpayer did not dispute that amount); see also Stubbs,
797 F.2d at 938–39 (same). We explained that “this procedure is in
[the appellant’s] interest since would be liable for the additional
costs and attorney’s fees incurred during any proceedings on re-
mand.” King,
789 F.2d at 884–85.
We have previously twice sanctioned Swanson for raising
similar frivolous arguments. As in those cases, the district court
here warned Swanson that “should he continue to file frivolous
lawsuits,” his ability to seek redress with the court would be cur-
tailed. In light of these warnings, as well as his previous frivolous
appeals raising the same arguments regarding the taxability of his
employment wages, another Rule 38 sanctions award is appropri-
ate. Additionally, even though the government’s motion does not
contain any calculations regarding its proposed $8,000 figure, we
previously have granted lump-sum sanctions. See Stubbs,
797 F.2d
at 938–39; King,
789 F.2d at 884–85. Similarly, although Swanson
argues that awarding $8,000 in sanctions is inappropriate, he does
not explain why, and, in any event, that is the same amount we
have twice previously awarded as sanctions against him, and other
taxpayers, for raising frivolous arguments on appeal.
Thus, we GRANT the government’s motion for sanctions,
and award $8,000 as sanctions.
AFFIRMED.
