United States v. Simones

Appellate Case: 21-2110 Document: 010110689938 Date Filed: 05/27/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 27, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-2110
(D.C. No. 1:20-CV-00795-PJK-SCY)
JAMES M. SIMONES, individually and as (D. N.M.)
Trustee of the Ancient of Days Trust,
Defendant - Appellant,
and
JO ANN HARTMAN STOCKTON, as
Trustee of the Ancient of Days Trust;
BROOKY STOCKTON, as Trustee of the
Ancient of Days Trust; ADELINA
MONNET,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and ROSSMAN, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 21-2110 Document: 010110689938 Date Filed: 05/27/2022 Page: 2
James M. Simones, pro se, appeals the district court’s summary judgment
order in favor of the United States that reduced to judgment unpaid federal income
tax and penalty assessments and foreclosed tax liens on three parcels of real
property.1 The order also directed the post-judgment sale of the properties and how
the proceeds should be disbursed.2 We liberally construe Mr. Simones’s pro se brief
and his filings below, but we do not act as his advocate. See Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
On appeal, Mr. Simones does not challenge the correctness of the summary
judgment order; instead, he contends the district court erred in denying his motion to
dismiss, which was premised on arguments that the court lacked jurisdiction and he
was not subject to the federal income tax laws. More specifically, Mr. Simones
maintains that: (1) “the district court is not a judicial court . . . ordained and
1
In addition to Mr. Simones, who was sued individually and as a trustee of the
Ancient of Days Trust (Trust), the Government also named as defendants Jo Ann
Hartman Stockton and Brooky Stockton, two trustees of the Trust, and Adelina
Monnet, an individual who claimed an interest in one of the three parcels of real
property. Only Mr. Simones filed a notice of appeal. See R., Vol. 2 at 490-91.
Additionally, this court denied Mr. Simones’s pro se motion to add the Stocktons and
Monnet as parties to the appeal.
2
After Mr. Simones filed his notice of appeal, he filed a motion to set aside
the summary judgment order. The district court characterized this motion as
requesting relief under Fed. R. Civ. P. 59(e) and 60 and denied it. Because
Mr. Simones did not file an amended notice of appeal, the order denying his motion
to set aside the summary judgment order is not before this court on appeal. See
Fed. R. App. P. 4(a)(4)(B)(ii).
2
Appellate Case: 21-2110 Document: 010110689938 Date Filed: 05/27/2022 Page: 3
established by Congress under Article III of the Constitution,” Aplt. Opening Br. at
10-11; (2) he discharged his federal income tax obligations when he filed, served,
and/or recorded: (a) a “Declaration of Revocation of Election to pay the Federal
income tax,” id. at 13; (b) an “Expatriation Act Document,” id. at 14; and (c) various
“Offer[s] of Tender,” id. at 14-18; (3) the court lacked “jurisdiction in Torrance
County New Mexico to deprive an American National of his private property,” due to
a flaw in the judge’s oath of office, which omitted the requirement “of any duty of
fidelity to the Constitution[,]” id. at 20, 22; and (4) as an American National living
outside Washington, D.C., he can elect to forgo paying federal income taxes.3 The
district court rejected these frivolous arguments, and so do we.
We review de novo issues of subject-matter jurisdiction. See Angle v. United
States, 996 F.2d 252, 253 (10th Cir. 1993). First, the district court correctly
acknowledged that “federal district courts have original jurisdiction over ‘any civil
action arising under any Act of Congress providing for internal revenue,’” R., Vol. 2
at 29 (quoting 28 U.S.C. § 1340), “as well as ‘all civil actions, suits or proceedings
commenced by the United States,’” id. (quoting 28 U.S.C. § 1345). “Moreover, [the
3
Mr. Simones raises a fifth issue on appeal—whether he was denied due
process. This argument incorrectly assumes this civil case was a criminal proceeding,
where the government would be required to file formal charges and Mr. Simones
would be entitled to a jury trial where he could “face his accuser(s).” Aplt. Opening
Br. at 27. Mr. Simones, however, did not advance this argument in the district court,
so it is forfeited. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th
Cir. 2011). We have discretion to consider forfeited arguments under plain-error
review. Id. at 1128. But Mr. Simones has not argued that plain-error review applies,
so we will consider the argument waived. Id. at 1130-31.
3
Appellate Case: 21-2110 Document: 010110689938 Date Filed: 05/27/2022 Page: 4
federal district] court has jurisdiction to issue orders and render judgments ‘as may
be necessary or appropriate for the enforcement of the internal revenue laws.’” Id.(quoting 26 U.S.C. § 7402(a)).
Second, we agree with the district court that
the government has authority to bring this suit against [Mr. Simones] in
order to recover the alleged . . . unpaid tax liabilities. When a person is
liable to pay a tax and refuses to pay after demand, the government can
impose a lien “upon all property and rights to property . . . belonging to
such person.”
Id. (quoting 26 U.S.C. § 6321).
This court has previously addressed similar arguments to those made by
Mr. Simones, including: (1) “the federal government’s power to tax wages or to tax
individuals at all”; (2) whether “the authority of the United States is confined to the
District of Columbia”; and (3) whether “the income tax is voluntary.” Lonsdale v.
United States, 919 F.2d 1440, 1448 (10th Cir. 1990). In each instance, we concluded
these arguments to be “completely lacking in legal merit and patently frivolous[.]”
Id. at 1448. See also United States v. Chisum, 502 F.3d 1237, 1243 (10th Cir. 2007)
(declining to consider “hackneyed tax protestor refrain[s]” concerning the district
court’s lack of jurisdiction). “An appeal is frivolous when the result is obvious, or
the appellant’s arguments of error are wholly without merit.” Ford v. Pryor,
552 F.3d 1174, 1180 (10th Cir. 2008) (internal quotation marks omitted). Here, as in
those cases, there is “no need to refute these arguments with somber reasoning and
copious citation of precedent [because] to do so might suggest that these arguments
have some colorable merit.” Crain v. Comm’r, 737 F.2d 1417, 1417 (5th Cir. 1984);
4
Appellate Case: 21-2110 Document: 010110689938 Date Filed: 05/27/2022 Page: 5
see also United States v. Gutierrez, 773 F. App’x 467, 468 n.2 (10th Cir. 2019);
Jacobsen v. Comm’r, 551 F. App’x 950, 952 (10th Cir. 2014); Vandagriff v. Comm’r,
486 F. App’x 722, 724 (10th Cir. 2012); United States v. Wankel, 475 F. App’x 273,
276 (10th Cir. 2012).4
The judgment of the district court is affirmed.
Entered for the Court
Veronica S. Rossman
Circuit Judge
4
Although not precedential, we find the reasoning of the unpublished
decisions cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished
decisions are not precedential, but may be cited for their persuasive value.”); see also
Fed. R. App. P. 32.1
5