Woofenden v. Arcaro

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1057
LEE WOOFENDEN,
Petitioner, Appellant,
v.
EDWIN ARCARO, APPEALS TEAM MANAGER,
INTERNAL REVENUE SERVICE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Lee Woofenden on brief pro se.
Deborah K. Snyder and David I. Pincus, Department of Justice,
Tax Division, Eileen J. O'Connor, Assistant Attorney General, and
Michael J. Sullivan, United States Attorney, on brief for appellee.
October 6, 2006
Per Curiam. Pro se appellant Lee Woofenden appeals from
a district court judgment dismissing his action for lack of
jurisdiction. We affirm and grant sanctions, albeit in a lower
amount than the government seeks.1 See Szopa v. United States, 453
F.3d 455, 456-58 (7th Cir. 2006); Szopa v. United States, 460 F.3d
884, 886-87 (7th Cir. Aug. 21, 2006) (both explaining why a similar
sanction request in that case was deemed excessive).
After receiving a notice of determination upholding
certain collection activities by the Internal Revenue Service
(IRS), Woofenden filed a petition for review in the district court.
At the time, he knew that the IRS was collecting his overdue income
taxes and that he should file his petition in the United States Tax
Court ("Tax Court"), which has jurisdiction over cases involving an
underlying income tax liability. The government moved to dismiss
the petition, contending that the district court lacked subject
matter jurisdiction. At a hearing, the district court informed
Woofenden that his arguments opposing dismissal were "wholly
without merit," and that he should pursue his petition in the Tax
Court. The district court dismissed the petition, and Woofenden
appealed.
1
Although Woofenden filed his suit against an individual
government employee, his suit is effectively against the United
States, and Department of Justice attorneys have briefed the
appeal, moving for sanctions.
-2-
On appeal, Woofenden frivolously asserts that the case
involves "employment taxes" (a matter within the district court's
jurisdiction), that he is not subject to income taxation, and that
the Tax Court lacks the power to adjudicate this case. We rejected
the same arguments as frivolous two years ago in Marino v. Brown,
357 F.3d 143, 145-46 (1st Cir. 2004) (per curiam), imposing a
sanction of $2,000. Id. at 147.
We impose a sanction of $2,000 on appellant for his
frivolous appeal.
Affirmed. A sanction of $2,000 is imposed on the
appellant. See Fed. R. App. P. 38.
-3-