Larry Heward v. United States , 782 F.2d 1042 ( 1985 )

782 F.2d 1042

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
LARRY HEWARD, Plaintiff-Appellant
v.
UNITED STATES OF AMERICA, Defendant-Appellee.

84-1198

United States Court of Appeals, Sixth Circuit.

12/9/85

ORDER

1

BEFORE: KEITH and KENNEDY, Circuit Judges; and UNTHANK, District Judge.*

2

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

3

In this action under 26 U.S.C. Sec. 6703, plaintiff seeks a refund of a penalty assessed against him for filing a frivolous income tax return. Summary judgment was entered for the government after a hearing in district court. Plaintiff has filed an appeal. He has submitted a brief pro se and the government has responded.

4

Upon consideration we find ourselves in agreement with the district court. Plaintiff's claim that he validly asserted a fifth amendment privilege on the return in question is totally without merit. United States v. Heise, 709 F.2d 449 (6th Cir.), cert. denied, 104 S. Ct. 285 (1983). His contention that the procedure for refund as outlined in 26 U.S.C. Sec. 6703 violates his due process rights is likewise without merit. This provides an adequate process whereby one may challenge the propriety of a fine levied under 26 U.S.C. Sec. 6702. See Bob Jones University v. Simon, 416 U.S. 725 (1974). We also hold that, contrary to plaintiff's assertion on appeal, there remains no genuine issue of material fact so that summary judgment was proper here. For these reasons, and for the reasons advanced in the order on appeal, we affirm.

5

It appearing therefore that the appeal is frivolous and entirely without merit, Rule 9(d)(2), Rules of the Sixth Circuit,

6

It is ORDERED that the final order of the district court be and it is hereby affirmed. It is also ORDERED that defendant-appellee be awarded double costs of this appeal. Rule 38, Federal Rules of Appellate Procedure.

*

Honorable G. Wix Unthank, United States District Judges for the Eastern District of Kentucky, sitting by designation