Taliaferro v. Commissioner of Internal Revenue

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
April 7, 2008
No. 07-12333
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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Tax Court No. 15721-068
IRVIN ELISON TALIAFERRO,
Petitioner-Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
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Appeal from a Decision of the
United States Tax Court
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(April 7, 2008)
Before EDMONDSON, Chief Judge, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Irvin Elison Taliaferro, proceeding pro se, appeals the
decision of the tax court dismissing his petition for redetermination of a deficiency
and sustaining the Commissioner of Internal Revenue’s (“Commissioner”)
proposed levy to collect unpaid tax liabilities. No reversible error has been
shown; we affirm.
Talifaerro did not file tax returns for tax years 2000 through 2003; so the
Internal Revenue Service (“IRS”) used third-party information and filed tax
returns for these years under the “substitute for return” program. Pursuant to 26
U.S.C. § 6303, the IRS sent Taliaferro a notice of the deficiency and demand for
payment; and pursuant to 26 U.S.C. §§ 6320, 6330, informed him of his right to a
Collection Due Process (“CDP”) hearing and sent him a “notice of levy.”
Taliaferro did not challenge the proposed tax liabilities before his CDP hearing.
After the CDP hearing, the IRS determined that it could not extend relief to
Taliaferro because he did not submit the requested financial documents, offer an
acceptable collection alternative, or timely file his 1999, 2004, or 2005 tax returns.
Thus, the IRS sent Taliaferro a statutory notice of determination about the
collection action and informed him of his right to petition the tax court.
Taliaferro petitioned the tax court for a redetermination of deficiency and
levy action, asserting that (1) the IRS had no authority to submit a substitute for
return on his behalf; (2) he was not required to file a 1040 tax return because the
form did not have a valid Office of Management and Budget (“OMB”) number as
2
required by 44 U.S.C. § 3512; and (3) IRS agents were based out of the
Department of the Treasury of Puerto Rico, 27 C.F.R. § 26.11, and not the United
States Treasury Department.1 The Commissioner filed a motion to dismiss for
failure to state a claim upon which relief could be granted. Taliaferro opposed the
motion, repeating the arguments from his petition, and additionally arguing that
the Sixteenth Amendment applied only to the national government and its
employees. The tax court granted the Commissioner’s motion and sustained the
proposed levy, determining that Taliaferro raised no justiciable issue and, instead,
raised only frivolous arguments.
On appeal, Taliaferro submits that the tax court abused its discretion in
determining that his arguments were frivolous because it failed to address the
arguments raised in his petition. We review de novo the tax court’s dismissal for
failure to state a claim. Creel v. C.I.R., 419 F.3d 1135, 1139 (11th Cir. 2005).2
The tax court correctly determined that Taliaferro did not state a claim
because all his arguments were frivolous.3 Under 26 U.S.C. § 6020(b)(1), the IRS
1
Taliaferro’s petition originally included the 1998 tax year; but the 1998 claim was dismissed for
lack of jurisdiction because he previously had received an appeals hearing.
2
In addition, we liberally construe pro se pleadings. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
3
The tax court also correctly sustained the proposed levy because the Commissioner complied
with all legal and procedural requirements. See 26 U.S.C. § 6330. Taliaferro’s underlying tax
3
is authorized to create a return--on behalf of any person who fails to file a return--
based on information in its possession and that obtained from third parties. In
addition, we have rejected the argument that a tax return need not be filed because
of the absence of an OMB control number because Congress did not condition the
statutory duty to file a tax return on a Treasury regulation. See United States
v. Neff, 954 F.2d 698, 699 (11th Cir. 1992). The regulation Taliaferro cites in
support of his argument that IRS agents were based out of the Department of
Treasury of Puerto Rico does not bear on the present action. See 27 C.F.R.
§ 26.11 (in a regulation dealing with alcoholic products coming into the United
States from Puerto Rico, the term “Secretary” is defined as “the Secretary of the
Treasury of Puerto Rico”). Furthermore, we have rejected, as frivolous, the
argument that the income tax applies only to the Federal government and its
employees. See Motes v. United States, 785 F.2d 928, 928 (11th Cir. 1986)
(determining as frivolous, among other things, argument that only public servants
are subject to tax liability); United States v. Pilcher, 672 F.2d 875, 877 (11th Cir.
1982) (every income earner is required to file an income tax return).4
liability was not at issue because he received a statutory notice of deficiency, did not appeal the
liability and, therefore, statutorily was precluded from doing so at the CDP hearing. See §
6330(c)(2)(A), (B).
4
We also reject, as belied by the record, Taliaferro’s contentions on appeal that the tax court did
not consider his submitted documents and that the Commissioner did not support its position with
4
Accordingly, we affirm the decision of the tax court.
AFFIRMED.
credible evidence.
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