Banister v. Commissioner ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH R. BANISTER, No. 15-71103
Petitioner-Appellant, Tax Ct. No. 30500-12
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Joseph R. Banister appeals pro se from the Tax Court’s decision, following a
bench trial, upholding the Commissioner’s determination of deficiencies and
additions for tax years 2003 through 2006, and imposing a penalty under 26 U.S.C.
§ 6673. We have jurisdiction under 26 U.S.C. § 7482(a). We review de novo the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 affirm.
The Tax Court properly upheld the Commissioner’s determination of
deficiencies, additions, and penalties for tax years 2003 through 2006. See 26
U.S.C. § 6201 (setting forth assessment authority of the Internal Revenue Service
(“IRS”)); id. at §§ 7601-7613 (providing the IRS with broad investigatory powers);
Grimes v. Comm’r, 806 F.2d 1451, 1453 (9th Cir. 1986) (restating that tax on
income is constitutional and defining taxable income); Bradford v. Comm’r, 796
F.2d 303, 307 (9th Cir. 1986) (affirming the Tax Court’s finding that fraud had
been established by clear and convincing evidence based on, inter alia, a failure to
file tax returns for four consecutive years).
The Tax Court did not abuse its discretion by imposing a penalty against
Banister for taking a frivolous position. See 26 U.S.C. § 6673; Grimes, 806 F.2d at
1454 (setting forth standard of review and finding no abuse of discretion in
imposition of penalty for frivolous petition); see also Larsen v. Comm’r, 765 F.2d
939, 941 (9th Cir. 1985) (“The right to petition . . . does not include the right to
maintain groundless proceedings.”).
We reject as without merit Banister’s contentions that the Tax Court did not
sufficiently consider his motion for offer of proof and motion to dismiss for lack of
jurisdiction.
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Respondent’s motion for sanctions in the amount of $8,000, filed on August
31, 2015, is granted. See Fed. R. App. P. 38; Grimes, 806 F.2d at 1454 (“Sanctions
are appropriate when the result of an appeal is obvious and the arguments of error
are wholly without merit.”).
AFFIRMED.
3 15-71103