Buckardt v. Commissioner , 548 F. App'x 433 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER JON BUCKARDT, No. 12-70143
Petitioner - Appellant, CIR No. 22131-10
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Elmer Jon Buckardt appeals pro se from the Tax Court’s decision, after a
bench trial, upholding the Commissioner of Internal Revenue Service’s notice of
deficiency against him for tax year 2008. We have jurisdiction under 26 U.S.C.
§ 7482(a)(1). We review de novo the Tax Court’s legal conclusions, Ann Jackson
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Family Found. v. Comm’r, 15 F.3d 917, 920 (9th Cir. 1994), and for clear error its
factual determinations, including the imposition of accuracy-related penalties,
Hansen v. Comm’r, 471 F.3d 1021, 1028 (9th Cir. 2006). We affirm.
The Tax Court properly upheld the Commissioner’s deficiency
determination because Buckardt failed to establish that his pension benefits from
State Street Retiree Services were not subject to taxation under the Tax Code. See
Hawkins v. United States, 30 F.3d 1077, 1079 (9th Cir. 1994) (“An accession to
wealth . . . is presumed to be taxable income, unless the taxpayer can demonstrate
that it fits into one of the Tax Code’s specific exemptions.”).
The Tax Court did not clearly err in imposing an accuracy-related penalty
for Buckardt’s underpayment of tax due to negligence or disregard of the rules and
regulations and his substantial understatement of income tax. See 26 U.S.C.
§ 6662(a), (b)(1) & (2) (authorizing penalty not to exceed 20% of the
underpayment for, among other things, negligence or disregard of rules or
regulations or a substantial understatement of income tax); id. § 6662(c) (defining
negligence and disregard); id. § 6662(d)(1)(A) (defining substantial
understatement).
The Tax Court did not abuse its discretion in imposing a penalty for
Buckardt’s maintenance of a frivolous or groundless suit despite the Tax Court’s
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repeated warnings. See id. § 6673(a)(1) (authorizing penalty not to exceed $25,000
for, among other things, bringing an action that is frivolous or groundless); Wolf v.
Comm’r, 4 F.3d 709, 716 (9th Cir. 1993) (setting forth standard of review and
explaining that “[w]hen taxpayers are on notice that they may face sanctions for
frivolous litigation, the tax court is within its discretion to award sanctions under
section 6673”).
Buckardt’s contentions that the Tax Court violated his First, Fourth, and
Fifth Amendment rights and was biased against him are unpersuasive and
unsupported by the record.
The Commissioner’s motion for sanctions against Buckardt for pursuing a
frivolous appeal, filed on July 9, 2012, is denied. See 28 U.S.C. § 1912; Fed. R.
App. P. 38.
AFFIRMED.
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