Malan v. Commissioner

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 17, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOHN ANTHONY MALAN,
Petitioner-Appellant,
No. 07-9003
v. (T.C. No. 23642-06L)
(United States Tax Court)
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and MURPHY, Circuit Judges.
John Anthony Malan appeals from orders of the United States Tax Court
dismissing his petition for review and summarily denying his motion to vacate or
revise its order dismissing the petition. We affirm the challenged orders of the
Tax Court and impose sanctions on Mr. Malan for filing a frivolous appeal.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In his Tax Court petition, Mr. Malan included a single ground for relief:
complete discharge – The Dept. – the Service and this created
administrative Boad [sic] are without political Jurisdiction over this
man.
R., doc. 1.
The Tax Court ordered him to file an amended petition setting forth with
specificity the factual and legal basis for his claims for relief. He failed to do so.
He also failed to respond, either in writing or by personal appearance, at the
hearing scheduled on the Commissioner of Internal Revenue (Commissioner)’s
motion to dismiss his petition for failure to state a claim. Accordingly, the Tax
Court granted the requested dismissal.
On April 6, 2007, Mr. Malan filed his “verified motion to vacate or revise
decision of March 7, 2007.” R., doc. 14; see also Tax Court Rule 162. In this
motion, he set forth in cursory terms seventeen grounds on which he contended
that the Tax Court should vacate or revise its decision. The arguments in his
motion did not address the Tax Court’s basis for dismissing his petition. The Tax
Court summarily denied the motion.
In his petition for review filed in this court, Mr. Malan raises a number of
contentions, some of them expressly denominated as issues, and others as facts or
bases for reversal. He argues: (1) that the Internal Revenue Service (IRS) lacked
“Political Jurisdiction over the man–John Anthony, Malan” to pursue collection
activities against him, Aplt. Opening Br. at 3; (2) that the notice of levy issued to
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him is a “counterfeited security,” id.; (3) that the Commissioner “never issued
authorization for any action to his underlings,” id.; (4) that the Commissioner
failed to follow the procedures required by the Internal Revenue Service
Restructuring and Reform Act of 1998, 26 U.S.C. § 6330 in his case; (5) that the
Commissioner deprived him of due process by denying him permission to record
his Collection Due Process Hearing; (6) that the Tax Court judge’s bias was
self-evident, because the judge was previously employed by the IRS; (7) that the
IRS improperly rejected his settlement offer of twenty-five silver dollars; (8) that
the Tax Court failed to honor his designation of the place of trial; and (9) that the
tax obligation the Commissioner seeks to collect is “fictitious, phony and
contrived,” id. at 8.
We review de novo the Tax Court’s decision to dismiss Mr. Malan’s
petition for failure to state a claim. Fox v. Comm’r, 969 F.2d 951, 952 (10th Cir.
1992). The Tax Court’s denial of his motion to vacate or revise its decision is
reviewed for an abuse of discretion. See Estate of Kraus v. Comm’r, 875 F.2d
597, 602 (7th Cir. 1989). Mr. Malan’s arguments lack merit and/or are frivolous.
None of them address the Tax Court’s basis for dismissal of his petition.
We therefore affirm the challenged Tax Court decisions.
The Commissioner has filed a motion requesting that we sanction
Mr. Malan for maintaining a frivolous appeal. Although provided with an
opportunity to do so, Mr. Malan did not respond to the motion for sanctions.
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“Fed. R. App. P. 38 and 28 U.S.C. § 1912 provide that a court of appeals may
award just damages and single or double costs if the court determines that an
appeal is frivolous or brought for purposes of delay.” Kyler v. Everson, 442 F.3d
1251, 1253 (10th Cir. 2006) (quotation omitted).
In his petition for review in this court, Mr. Malan renews the same
frivolous argument for which the Tax Court previously admonished him.
See R., doc. 10, at 4. “Although this court may require a higher level of
responsibility from members of the bar, pro se litigants are subject to the same
minimum litigation requirements that bind all litigants and counsel before all
federal courts.” Kyler, 442 F.3d at 1253 (citation omitted). The Government’s
motion for sanctions is well-founded. See id.The Government requests that we award it sanctions in the amount of
$8,000, reasoning that “the average expense in attorney salaries and other costs
incurred by this office in the defense of frivolous taxpayer appeals in which
sanctions were awarded during 2004 and 2005 is more than $11,000.” Mot. for
Sanctions, at 5-6. Particular factors in this case, however, make the requested
sum inappropriate. Mr. Malan made only one argument in his Tax Court petition.
The Tax Court dismissed the petition for failure to state a claim, and declined to
impose sanctions. Although he raised a number of frivolous arguments in his
subsequent motion to vacate or revise the Tax Court’s dismissal, the Tax Court
disposed of these summarily. Mr. Malan renews some of these frivolous
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arguments on appeal, but the Government has not briefed them. Instead, the
argument section of its nineteen-page brief essentially responds only to the single
frivolous argument raised in Mr. Malan’s original petition. See Aplee Br. at
13-16. Under the circumstances, while an award of sanctions is appropriate, in
our discretion we reduce the requested sum to $2,000.
The judgment of the Tax Court is AFFIRMED. The mandate for sanctions
shall issue forthwith.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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