Leyva v. Commissioner ( 2012 )

FILED
NOT FOR PUBLICATION SEP 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDREW LEYVA, No. 11-71648
Petitioner - Appellant, Tax Ct. No. 25427-09
v.
MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,
Respondent - Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Andrew Leyva appeals pro se from the Tax Court’s decision, following a
bench trial, upholding the Commissioner of Internal Revenue’s (“CIR”)
determination of a deficiency and additions for tax year 2006 and imposing a
*
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).
sanction for making frivolous arguments. We have jurisdiction under 26 U.S.C.
§ 7482(a). We review de novo the Tax Court’s legal conclusions, and for clear
error its factual findings. Johanson v. Comm’r, 541 F.3d 973, 976 (9th Cir. 2008).
We review for an abuse of discretion the Tax Court’s imposition of a penalty under
26 U.S.C. § 6673. Grimes v. Comm’r, 806 F.2d 1451, 1454 (9th Cir. 1986) (per
curiam). We affirm.
The Tax Court properly upheld the CIR’s determination of a tax deficiency
and additions to tax over Leyva’s contentions that no law requires him to pay the
income tax imposed by the CIR, and that, because he filed a Form 1040 reporting
zero income, the CIR is prohibited from collecting any income taxes from him.
See, e.g., Wilcox v. Comm’r, 848 F.2d 1007, 1008 (9th Cir. 1988) (rejecting similar
contentions).
The Tax Court did not abuse its discretion by imposing a § 6673 sanction
against Leyva for taking frivolous positions after warning Leyva that such conduct
could lead to sanctions. See Grimes, 806 F.2d at 1454.
The CIR’s motion for sanctions is denied.
Leyva’s motion for a stay pending resolution of this appeal is denied as
moot.
AFFIRMED.
2 11-71648