Hilvety v. Commissioner , 216 F. App'x 582 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2007*
Decided February 14, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1525
BRIAN L. HILVETY, Appeal from the United States Tax
Petitioner-Appellant, Court
v. No. 15955-05
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
ORDER
Brian Hilvety filed a petition in the United States Tax Court for
redetermination of a tax deficiency and additions to tax assessed by the
Commissioner of Internal Revenue after he failed to file an income tax return for
the year 2003. In the petition Hilvety argued that the Commissioner’s actions were
invalid because, he asserted, certain relevant forms lacked valid OMB control
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-1525 Page 2
numbers as required by the Paperwork Reduction Act of 1995, 44 U.S.C. § 3501 et
seq. The Commissioner moved to dismiss the petition for failure to state a claim.
Rather than grant the motion, the court ordered Hilvety to amend his petition to
conform with the rules requiring him to set forth with specificity the alleged errors
in the calculation of his deficiency and facts supporting his position. See Tax Ct. R.
34(b)(4)-(5). When Hilvety failed to amend his petition, the court granted the
motion to dismiss, concluding that Hilvety raised “nothing but frivolous and
groundless arguments.” The court also upheld the amount of the deficiency—as
modified in Hilvety’s favor by the Commissioner—and imposed a penalty of $3,000
on Hilvety for instituting frivolous proceedings in Tax Court, see 26 U.S.C.
§ 6673(a)(1).
On appeal Hilvety reiterates his argument that he is not liable for his tax
deficiency because various forms used by the Internal Revenue Service displayed
invalid control numbers. This argument, raised more often as a defense to criminal
prosecutions for tax evasion, has been rejected by every court to consider it on the
ground that the PRA does not alter the statutory requirement to file an income tax
return. See Salberg v. United States, 969 F.2d 379, 384 (7th Cir. 1992); United
States v. Neff, 954 F.2d 698, 699-700 (11th Cir. 1992); United States v. Hicks, 947
F.2d 1356, 1359 (9th Cir. 1991); United States v. Dawes, 951 F.2d 1189, 1193 (10th
Cir. 1991). The frivolousness of his argument aside, the dismissal of Hilvety’s
petition was proper because he failed to allege any error in the assessment of his
deficiency. Other than baldly asserting that the deficiency was “erroneous and in
dispute,” he did not point to any mistakes in the Commissioner’s calculation even
when the court gave him a second chance to do so. Indeed, Hilvety’s quarrel is not
with the amount of the deficiency assessed by the Commissioner but with his
obligation to acquiesce to the IRS’s use of what he characterizes as “bootleg” forms.
But a petition for redetermination is not the proper forum to raise such a challenge.
See Tax Ct. R. 34(b). Accordingly, we affirm the decision of the Tax Court
dismissing the petition and imposing a $3,000 penalty under § 6673(a)(1).
Both parties have asked us, via separately filed motions, to impose sanctions
on the other. The Commissioner moves for sanctions against Hilvety in the amount
of $8,000 for filing a frivolous appeal. See 26 U.S.C. §7482(c)(4); Fed. R. App. P. 38.
We have set $4,000 as the presumptive amount of sanctions for filing a frivolous
appeal in a tax case, subject to doubling in cases where the appeal is filed by a
repeat offender. Szopa v. United States, 460 F.3d 884, 887 (7th Cir. 2006). Hilvety
is no stranger to frivolous tax litigation: only last year we lifted a filing bar we
imposed on him in 2001 under Support Systems International v. Mack, 45 F.3d 185(7th Cir. 1995), in connection with his other frivolous tax appeals. See Hilvety v.
CIR, 21 F. App’x 475 (7th Cir. 2001) (unpublished decision). Hilvety appears
determined to burden the courts with frivolous arguments, and so we GRANT the
Commissioner’s motion for sanctions in the amount of $8,000. For his part, Hilvety
requests that we impose a sanction of $16,000 on the Commissioner for his
No. 06-1525 Page 3
continued violation of the PRA and his “false and misleading” arguments in this
court. We discern no basis for granting Hilvety’s request, see Fed. R. App. P. 38,
and we therefore DENY his motion.
AFFIRMED.