Swan v. United States

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2534
STEVEN A. SWAN,
Plaintiff, Appellant,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Steven A. Swan on brief pro se.
Eileen J. O’Connor, Assistant Attorney General, David English
Carmack and Jeffrey R. Meyer, Attorneys, Tax Division, Department
of Justice and Thomas P. Colantuono, United States Attorney, on
brief for appellee.
May 7, 2002
Per Curiam. After carefully reviewing the record and
briefs on appeal, we affirm the judgment for substantially the
reasons given below.
The appellant’s primary argument on appeal is that
the court’s federal question jurisdiction covered his Sixteenth
Amendment challenge to his income taxes. A frivolous
constitutional issue does not raise a federal question,
however. Hagans v. Lavine, 415 U.S. 528 (1974); Molina-Crespo
v. Califano, 583 F.2d 572 (1st Cir. 1978). The appellant argues
that the constitutional issue could not be frivolous because he
adduced credible evidence that Congress intended a narrower
income tax. He misses the point. The issue is frivolous
because it has already been decided, not because the evidence
is univocal. The income tax has survived constitutional
challenge. See, e.g., Eisner v. Macomber, 252 U.S. 189 (1920);
Quijano v. United States, 93 F.3d 26 (1st Cir. 1996); United
States v. Turano, 802 F.2d 10 (1st Cir. 1986).
The appellant’s remaining arguments merit little
discussion. Given the resolution of the constitutional issue,
the appellant could not show that he was certain to prevail,
precluding equitable relief. Bob Jones University v. Simon,
416 U.S. 725 (1974). The appellant failed to establish
jurisdiction under I.R.C. § 7422(a) by showing that he paid the
taxes and filed claims for refunds. McMillen v. United States
Department of Treasury, 960 F.2d 187 (1st Cir. 1991).
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We hereby deny the appellant’s motion for return of
property and an investigation.
Affirmed. Loc. R. 27(c).
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