Pollinger v. Internal Revenue Service Oversight Board

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12295 ELEVENTH CIRCUIT
JANUARY 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 07-00013-CV-3-RV-MD
HARRY POLLINGER,
Plaintiff-Appellant,
versus
INTERNAL REVENUE SERVICE
OVERSIGHT BOARD, et al.,
Defendants,
UNITED STATES,
a Federal Corporation,
a.k.a. United States of America,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 15, 2010)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Harry Pollinger (“Pollinger”) appeals, pro se, the district court’s grant of
summary judgment on his claims that the government intentionally, recklessly, or
negligently disregarded the law in connection with the collection of his federal
income tax for tax years 2000 to 2002. The government moves us to sanction
Pollinger for maintaining a frivolous appeal. After reviewing the record, we vacate
in part for Pollinger’s constitutional claims to be dismissed for lack of jurisdiction,
affirm the district court’s grant of summary judgment on the statutory claims, and
deny the government’s motion for sanctions.
I. BACKGROUND
A. Pollinger’s Complaint
In January 2007, Pollinger filed a complaint against the United States, the
Internal Revenue Service (“IRS”) and others challenging the amount of tax liability
assessed against him and the collection methods used, including garnishing his
wages, seizing his bank accounts, and filing tax liens on his real estate. R1-1 at 1-
2, 5-10. Liberally construed, Pollinger explained that he exchanged his life and
liberty for wages, so government seizure of his wages was an illegal seizure of life
and liberty. See id. at 15. He claimed the IRS had issued a notice of federal tax
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lien for tax years 2000-2002 and that he had exhausted all administrative remedies
in that regard. Id. at 6, 9. The relief Pollinger sought included a finding that his
property was improperly taken, an order that the tax liens be released, the return of
all the property and money seized, statutory damages of $2 million, and
costs/interest. Id. at 22-23.
Pollinger raised six claims: (1) the need to quiet title on his real estate,
which the government was claiming an interest in, pursuant to 28 U.S.C. § 2410;
(2) the government’s failure to comply with 26 U.S.C. § 6213(a) by issuing
procedurally invalid notices of deficiency, notices of levy, and notices of tax liens
in violation of various constitutional provisions; (3) a violation of the
Administrative Procedures Act (“APA”) and the Due Process and Just
Compensation Clauses of the Fifth Amendment by the IRS improperly asserting
tax liability and taking his property; (4) the government’s failure to comply with 26
U.S.C. § 7432 by issuing a procedurally improper tax levy and refusing to release
the notice of lien, pursuant to 26 U.S.C. § 6325; (5) issuance of a bill of attainder
by labeling him an illegal tax protester and taking his property without a trial and
via procedurally invalid notices of levy and tax liens in violation of various
constitutional provisions; and (6) illegal seizure of his labor in violation of the Just
3
Compensation Clause of the Fifth Amendment and other constitutional provisions.1
Id. at 10-21.
B. Pollinger’s Motion for Summary Judgment
In April 2008, Pollinger filed a motion for summary judgment on all claims.
R1-47. He asserted that the government had taken his sweat equity and labor
property from him by garnishing his wages, seizing his savings from his bank, and
encumbering his real property. Id. ¶¶ 1-4, 6-7. Pollinger asserted for the first time
that he exhausted his administrative remedies pursuant to 26 U.S.C. § 7433 and
was filing a claim under § 7433 to recover damages from the IRS for its arbitrary
seizures. Id. ¶¶ 8, 53-56. He argued that he was entitled to judgment because the
government (1) did not establish a basis for tax liability on his compensation, and
(2) improperly relied on the presumption of correctness of “Form 4340 –
Certificate of Assessments” to show the amount of the tax assessment that applied
to him and how that calculation was reached when the preparer of the form had no
personal knowledge of the accuracy of the calculations the form contained. Id. ¶¶
10-15, 23-31. Moreover, he contended that the tax lien against his property should
1
On motion by the government, the district court dismissed defendants other than the
United States, held that Pollinger did not state a claim under the APA, and denied declaratory
and injunctive relief. R1-10, 22. Pollinger does not assert error regarding those issues on
appeal. Accordingly, the issues are waived on appeal. Access Now, Inc. v. Southwest Airlines
Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
4
be released because the notices of deficiency: (1) ambiguously cited “Individual
Income” as a basis for liability, (2) did not articulate a relevant statutory basis for
tax liability, (3) cited an irrelevant code section, 26 U.S.C. § 1040, as the statute
under which he was liable for the taxes, and (4) did not provide a factual basis for
his tax liability. Id. ¶¶ 16-22.
Pollinger argued that he was entitled to a basis or depreciation for the value
of his labor and, because the government did not prove he was not entitled to a
basis, his compensation was not shown to be income. Id. ¶¶ 33-44. Further,
Pollinger argued that the government documents purporting to support his tax
liability and penalties were not in compliance with the Paperwork Reduction Act,
and thus the assessments were invalid. Id. ¶¶ 45-52. In support of his motion,
Pollinger filed, inter alia, notices of deficiency for 2000 and 2001. Doc. 48,
Exh. H.
Pollinger also filed a motion for “Fair and Impartial Rulings, Hearings [and]
Trials not Steeped in Judicial Activism.” R1-49 at 1. He asserted that courts often
rubber stamp acts of the IRS because judges are federal employees. Id. at 1-2, 11-
15. Pollinger explained his perceptions of bias and that he was filing the motion to
preserve his common law rights. Id. at 2-6. He requested strict adherence to
precedent rather than judicial activism or bias. Id. at 7-11, 15-19.
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C. Government’s Motion for Summary Judgment
The government also filed a motion for summary judgment, asserting that
Pollinger was clearly seeking relief pursuant to 26 U.S.C. § 7432 allowing civil
damages for the government’s failure to release a tax lien, not 26 U.S.C. § 7433,
allowing damages for unauthorized collection actions. R1-51 at 4. The
government explained that the IRS had followed proper procedures while assessing
Pollinger’s tax liability. Id. at 7-11. Regarding Pollinger’s claim for quiet title, the
district court lacked jurisdiction because the United States waived sovereign
immunity only for procedural challenges to a tax lien, not the underlying merits of
the tax assessment, but Pollinger was contesting the validity of the tax assessment
underlying the lien on his property. Id. at 11-13. Pollinger’s just compensation
claim was without merit because the constitutionally authorized income tax did not
violate the Constitution. Id. at 13. Moreover, due process was satisfied by the
availability of judicial remedies. Id. at 13-14. Pollinger’s argument that a bill of
attainder was issued against him by the government’s labeling him an “illegal tax
protester” was misplaced because IRS records did not label him as such. Id. at 15.
Additionally, any direct claim for money damages based on constitutional
violations was also barred by sovereign immunity. Id. at 15-16.
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Next, the government asserted that to the extent Pollinger had raised a claim
under 26 U.S.C. § 7433, the claim failed because he was improperly attempting to
challenge the assessment of tax, and he had not shown any unlawful collection
activity under § 7433. Id. at 16-19. Further, Pollinger had not exhausted his
administrative remedies under § 7433, and, in any event, all assessments were
proper and in accordance with IRS procedure. Id. at 19-20. Pollinger also had not
exhausted administrative remedies regarding a claim under 26 U.S.C. § 7432 or for
a refund under 26 U.S.C. § 7422. Id. at 20-23. Substantively, Pollinger’s claim
under § 7432 for improper failure to release a lien was without merit because
Pollinger did not satisfy 26 U.S.C. § 6325 as he neither satisfied the liability nor
posted a bond. Id. at 21-22.
Attached to the motion was a certified copy of the IRS’s records of
Pollinger’s tax liabilities. R1-51, Exh. B at 1-31. Also attached was an affidavit
from Catherine Sands, a registered pseudonym for an IRS revenue agent. R1-51,
Sands Affidavit. According to Sands, the IRS determined Pollinger’s tax liabilities
for 2000 through 2002, created substitute returns for each year, and initiated
collection actions for the tax liability. Id. ¶ 5. After the IRS issued a Notice of
Federal Tax Lien and Notices of Intent to Levy for the liability arising out of 2000
and 2001, Pollinger requested a collection due process hearing. Id. ¶¶ 5-6. After
7
the hearings, Pollinger received written decisions sustaining the decision to pursue
collection. Id. ¶¶ 6, 9-10. IRS records indicated that a statutory notice of
deficiency for 2002 was missing, but the individual masterfile showed that the
notice was mailed to Pollinger’s known address in September 2004, and that
Pollinger did not timely petition the Tax Court thus defaulting on the notice. Id. ¶
7. Sands stated that she had personal knowledge of the IRS record-keeping
system, the system was kept in the regular course of IRS business, and the records
did not show that Pollinger was designated as an “illegal tax protester.” Id. ¶¶ 11-
12.
D. Government’s Response to Pollinger’s Motion
The government responded to Pollinger’s motion for summary judgment,
arguing that Pollinger had not shown any waiver of sovereign immunity. R1-55 at
1. The only conceivable basis for recovery was 26 U.S.C. § 7433, which
authorized actions for civil damages against the United States if an IRS employee
acts unlawfully in the collection of federal tax. Id. at 4. However, Pollinger did
not show any government act that fell within the purview of that statute or that he
had exhausted his administrative remedies with regard to such a claim. Id. at 4-5.
In particular, none of his exhibits showed that he made a proper administrative
claim or that a claim was denied as required for a suit under § 7433. Id. at 5.
8
Even assuming that Pollinger exhausted administrative remedies sufficient
to bring a § 7433 action, the government argued that Pollinger could only
challenge the collection procedures, not the assessment of tax liability. Id. at 6.
Further, Pollinger’s assertion that officials certifying the IRS records lacked
personal knowledge was without merit because the certifying official was not
required to have personal knowledge of how Pollinger’s taxes were assessed as the
records were self-authenticating. Id. at 6-7. Pollinger presented nothing that
overcame the presumption of correctness of Form 4340, which set forth his tax
assessments. Id. at 7. Finally, Pollinger’s argument that his wages were not
taxable because individuals have a basis in their labor equal to the fair market
value of the wages they receive and thus have no gain to be taxed, conflicted with
the IRS’s definition of gross income as income from any source. Id. at 7-8.
E. Pollinger’s Response to the Government’s Motion
Pollinger responded to the government’s motion for summary judgment,
arguing that he could raise a due process challenge because the IRS had not
explained how it determined the amount of his tax liability. R2-62 at 3-5. The
lack of explanation, combined with the IRS’s notices of deficiency, notices of tax
liens, and Forms 4340, created an illusion of compliance with proper procedures
and created a genuine issue of material fact regarding whether the IRS accurately
9
computed his tax liability. Id. at 5-6. Additionally, the copies of Form 4340 were
not supported by documentary evidence and were hearsay. Id. at 6-10.
Pollinger also argued that the IRS did not properly notify him of the
requirement to file a tax return, and he was not required to file a tax return without
that notice. Id. at 10-13. Further, he did not earn taxable income because his
wages were not entirely profit. Id. at 13-14, 16-19. Pollinger argued that the
government’s assertion that his entire wages were taxable income was based on
erroneous and undisclosed calculations. Id. at 14-15. Pollinger maintained that his
arguments were not frivolous, id. at 19-20, and asserted that the IRS engaged in
unlawful collection activity under § 7433 by (1) improperly relying on a
misinterpretation of 26 U.S.C. § 6331, which governed the IRS’s taking of
property via notices of levy, and (2) imposing greater tax liability than allowed by
law. Id. at 20-24.
F. Magistrate Judge’s Report
The magistrate Judge issued a report and recommendation finding that
Pollinger’s motion for summary judgment should be denied and the government’s
motion should be granted. R2-67 at 1. Regarding Pollinger’s due process claims,
the notices of determination from tax years 2000 and 2001 that Pollinger attached
to his summary judgment motion belied any claim that the notices did not issue
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and that he did not receive due process regarding his tax liability from 2000 and
2001. Id. at 6-8. As for tax year 2002, the magistrate judge noted that while the
government could not locate a copy of the notice of deficiency, it had provided
exhibits showing that it issued its statutorily required notice and demand for
payment. Upon receiving that notice, Pollinger requested a hearing after which the
liens were sustained. Id. at 9.
Regarding Pollinger’s quiet title claim, the magistrate judge found
jurisdiction because Pollinger was asserting a procedural challenge to the
government’s alleged failure to issue a notice of deficiency, which resulted in an
allegedly invalid notice of tax lien. Id. at 12. Nevertheless, Pollinger had not
rebutted the evidence of the procedural steps taken by the IRS, therefore, the
government was entitled to judgment as a matter of law on that claim because there
were no genuine issues of material fact. Id.The magistrate judge also found that Pollinger’s constitutional claims failed.
Id. at 12-13. Regarding Pollinger’s just compensation and due process claims,
judicial review was unavailable in that Pollinger could have filed a refund suit
under § 7422 or petitioned the tax court under 26 U.S.C. § 6213 to redetermine the
asserted tax deficiency, but Pollinger did not use either of those procedures. Id.Regarding the bill of attainder claim, the court found that there was no genuine
11
issue of material fact because no evidence showed that IRS records designated
Pollinger an “illegal tax protester.” Id. at 13.
As for any claim under 26 U.S.C. § 7433 that Pollinger’s complaint could be
construed to raise, the court found that there was no evidence the IRS had
improperly assessed Pollinger’s tax liability or used improper collection
procedures. Id. at 14. Further, Pollinger could not use 26 U.S.C. § 7433 to
challenge the existence of tax liability. Id. Regarding Pollinger’s claim that IRS
employees improperly failed to release a lien under 26 U.S.C. § 7432, the court
found that Pollinger had not complied with the statutory prerequisites to bringing
such an action by showing either that the liability was satisfied or that he posted a
bond as required by 26 U.S.C. § 6325(a). Id. at 15-16. To the extent that
Pollinger’s complaint could be construed as a suit for a refund under 26 U.S.C. §
7422, the court lacked jurisdiction because Pollinger had not exhausted the
jurisdictional prerequisites to suit with regard to any year but perhaps tax year
2001. Id. at 16-17. For 2001, however, the record showed that Pollinger did not
file a return or pay taxes, justifying imposition of penalties. Id. at 17.
Turning to Pollinger’s motion for summary judgment, the court found that
Pollinger’s assertions were “factually and legally unsound.” Id. at 19.
Specifically, Pollinger’s argument that his wages were not taxable income was
12
frivolous. Id. at 19-20. Further, his allegation of noncompliance with the
Paperwork Reduction Act did not entitle him to summary judgment and his
argument to the contrary was frivolous. Id. at 20-21. Additionally, Pollinger’s
assertion that the preparer of Form 4340 did not have personal knowledge was
frivolous and insufficient to rebut the form’s presumption of correctness. Id. at 21.
The magistrate judge denied Pollinger’s motion for an impartial trial to the
extent that Pollinger sought “special consideration,” explaining that there was “no
basis for plaintiff’s suggestion that his case will be treated other than in accordance
with the law.” Doc. 53 at 1.
Neither party filed objections, and the district court adopted the magistrate
judge’s report and recommendation, denied Pollinger’s motion for summary
judgment, and granted the government’s motion for summary judgment. R2-70.
Pollinger filed a timely notice of appeal. R2-72.
II. DISCUSSION
On appeal, Pollinger argues that the district court denied him an impartial
hearing as part of the court’s prejudice in favor of the government, as shown by the
denial of his motion for an impartial trial. He maintains that the IRS never
disclosed its method for calculating his taxable income and, therefore, the tax liens
are procedurally invalid. Pollinger asserts that the IRS also never identified the
13
statutory authority it relied upon to calculate his taxable income and liability.
Pollinger maintains that the government did not establish that he was ever sent a
notice of deficiency for tax year 2002. Pollinger expressly denies that he was
seeking a refund under § 7422.
Construed liberally, Pollinger also argues that the district court erred by
treating his wages as taxable gain without considering whether loss of his human
capital was an expense. Pollinger asserts that he owns his labor as human capital
and his wages were the fair market value of that labor, so he did not receive any
taxable gain. He maintains that he was allowed to deduct for the depreciation of
his human capital, and the denial of this deduction caused income tax to be
imposed on parts of his wage that were not taxable gain. He asserts that the
alternative interpretation, that he was not entitled to a deduction, implies the
incorrect conclusion that his wages were a gift. Pollinger argues that the
government is incorrect when it states the law classifies wages as income, and that
position violates the prohibition against involuntary servitude. Pollinger asserts
that the government did not verify the submitted copies of Form 4340 – the
Certificate of Assessments of the tax – by producing the copies of the supporting
Form 23C. He maintains the district court erred by treating his claims for damages
14
as a refund claim and refusing to address whether the government complied with
the Paperwork Reduction Act.
The government responds, in part, by asserting that the district court lacked
jurisdiction over Pollinger’s constitutional claims because the United States has not
waived sovereign immunity. Additionally, the government argues that the district
court lacked jurisdiction over some of Pollinger’s statutory claims because he did
not exhaust his administrative remedies. Finally, the government motions to
sanction Pollinger for maintaining a frivolous appeal.
A. Jurisdictional Issues
“The subject matter jurisdiction of the district court is a question of law
subject to de novo review.” Mut. Assurance, Inc. v. United States, 56 F.3d 1353,
1355 (11th Cir. 1995). The United States, as sovereign, is immune from suit
except in cases where it consents to be sued, and the terms of the government’s
consent define the federal court’s jurisdiction to entertain the suit. United States v.
Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1352 (1980). When no such consent
exists, the district court lacks jurisdiction to entertain the suit. Id. Where a district
court lacks jurisdiction to enter an order, the appellate court only has jurisdiction
on appeal for the purpose of correcting the error of the lower court in entertaining
the suit, and does not have jurisdiction over the merits. Tamiami Partners, Ltd. ex
15
rel. Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of Fla., 177 F.3d 1212,
1221 (11th Cir. 1999). A district court errs by entering summary judgment in
favor of the government when the district court lacks subject matter jurisdiction,
even when the underlying claim is without merit. Stanley v. Central Intelligence
Agency, 639 F.2d 1146, 1156-57 (5th Cir. Unit B 1981) abrogated on other
grounds by United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054 (1987). The
proper course is for the district court to dismiss claims over which it has no
jurisdiction rather than deny summary judgment. Id. at 1157.
The district court lacks jurisdiction over constitutional claims brought
directly against the United States for damages because those claims are barred by
sovereign immunity. Boda v. United States, 698 F.2d 1174, 1176 (11th Cir. 1983).
However, the United States has waived sovereign immunity for claims that IRS
employees (1) knowingly or negligently failed to release a lien under 26 U.S.C.
§ 6325 or (2) intentionally, recklessly, or negligently disregarded the law in
connection with any collection of federal tax. 26 U.S.C. §§ 7432, 7433. To fall
within a waiver of sovereign immunity to raise a claim under either of those
subsections, however, a taxpayer must exhaust administrative remedies. Id.§§ 7422, 7432(d)(1), 7433(d)(1).
16
The district court lacked jurisdiction over Pollinger’s constitutional claims to
the extent he sought money damages because the United States has not waived
sovereign immunity over constitutional claims arising out of the collection of tax.
Boda, 698 F.2d at 1176; McMahon v. Presidential Airways, Inc., 502 F.3d 1331,
1345 (11th Cir. 2007). Based on the lack of subject matter jurisdiction, the district
court erred by granting summary judgment for the government as to the
constitutional claims Pollinger raised seeking money damages under the due
process, takings, just compensation, and bill of attainder clauses. Id. We therefore
vacate the judgment in part and remand for the district court to dismiss Pollinger’s
constitutional claims. Stanley, 639 F.2d at 1156-57.
B. Summary Judgment Issues
We review “the district court’s grant of a motion for summary judgment de
novo, construing all evidence in the light most favorable to the non-moving
party.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000).
Summary judgment is proper if the pleadings, depositions, and affidavits show that
there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).
“[C]onclusory allegations without specific supporting facts have no probative
17
value” and a party opposing summary judgment must set “forth specific facts to
show why there is an issue for trial.” Leigh, 212 F.3d at 1217 (citation and
quotation omitted).
Submission of Form 4340 creates a presumption that the assessment of tax
was proper. United States v. White, 466 F.3d 1241, 1248-49 (11th Cir. 2006).
Sections 7432 and 7433 do not allow a taxpayer to challenge the propriety of
assessing tax liability. 26 U.S.C. §§ 7432, 7433. We have held the argument that
“wages are not income subject to tax but are a tax on property such as . . . labor” is
frivolous. Motes v. United States, 785 F.2d 928, 928 (11th Cir. 1986) (per
curiam).
The government’s claim that the district court lacked jurisdiction over
Pollinger’s § 7433 claim because he failed to exhaust it is without merit. The
evidence submitted by the government shows that Pollinger sought administrative
relief from the IRS. Viewed in the light most favorable to Pollinger as the non-
moving party, this evidence shows that the district court had jurisdiction over
Pollinger’s § 7433 claim because he exhausted – at least some – administrative
remedies, allowing him to fall within the United States’ waiver of sovereign
immunity as to the statutory claims he raised under § 7433. 26 U.S.C. §§ 7422,
7433.
18
The district court correctly granted summary judgment, however, on the
merits of Pollinger’s statutory claims. Regarding Pollinger’s § 7432 claim, the
district court was correct that such a claim failed unless Pollinger raised a genuine
issue regarding his satisfaction of the tax liability or his presentation of a bond. 26
U.S.C. §§ 6325, 7432. Because Pollinger presented no evidence to support either
assertion, he failed to raise a genuine issue of material fact.
Likewise, under § 7433, Pollinger presented no evidence that the IRS
negligently attempted to collect tax from him because he did not present any
evidence that the IRS failed to follow proper procedures. Pollinger’s claim that the
government did not meet its burden in its motion for summary judgment in terms
of following proper procedure is without merit. The government presented
evidence that it complied with all procedures while collecting tax from Pollinger,
including sending a notice of deficiency for each year. In particular, and contrary
to Pollinger’s new argument on appeal, the government’s evidence specifically
showed that the 2002 statutory notice of deficiency was mailed to Pollinger. Thus,
Pollinger’s argument that the IRS documentation merely created an illusion of
procedural compliance is a conclusory allegation and insufficient to show that the
IRS violated the procedures set forth in §§ 7432 and 7433.
19
Pollinger’s claim that the IRS failed to justify the method it used to
determine that he owed tax liability is without merit. Essentially, Pollinger is
arguing that he is not legally obligated to pay taxes on his wages because his basis
in his human capital offsets his wage revenue. This argument fails, however,
because § 7432 and § 7433 do not allow for actions regarding assessment of tax
liability. 26 U.S.C. §§ 7432, 7433. Moreover, his argument is legally frivolous.
Motes, 785 F.2d at 928. Pollinger’s argument that the government was required to
produce a Form 23C to support a Form 4340 is equally without merit because
Form 4340 has a presumption of correctness. White, 466 F.3d 1241, 1248-49.
Moreover, Pollinger asserted only conclusory allegations insufficient to rebut the
presumption of correctness. Leigh, 212 F.3d at 1214. The district court thus did
not err by granting summary judgment to the government on Pollinger’s statutory
claims because Pollinger did not raise any genuine issues of material fact. Celotex
Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
Finally, Pollinger’s claims of judicial bias have no support in the record, and
his claim that summary judgment should not have been granted because the
government did not comply with the Paperwork Reduction Act is also without
merit. See United States v. Neff, 954 F.2d 698, 700 (11th Cir. 1992) (per curiam)
(holding that the Paperwork Reduction Act has no effect on the duty to pay income
20
tax). Because none of Pollinger’s arguments on appeal have merit, we affirm the
district court’s grant of summary judgment on Pollinger’s statutory claims.
C. Sanctions
When affirming a judgment, a court of appeals may adjudge in its discretion
“just damages [to the prevailing party] for his delay, and single or double costs.”
28 U.S.C. § 1912. Damages are appropriate where the appeal was brought
frivolously or in bad faith. Gathercrest, Ltd. State Bank of India v. First American
Bank & Trust, 805 F.2d 995, 997 (11th Cir. 1986). In addition, Fed. R. App. P. 38
provides that if a court of appeals determines that an appeal is frivolous, it may,
after a separately filed motion or notice from the court and reasonable opportunity
to respond, award just damages and single or double costs to the appellee.
Fed. R. App. P. 38. We have imposed Fed. R. App. P. 38 sanctions “against
appellants who raise ‘clearly frivolous claims’ in the face of established law and
clear facts.” Misabec Mercantile, Inc. De Panama v. Donaldson, Lufkin & Jenrette
ACLI Futures, Inc., 853 F.2d 834, 841 (11th Cir. 1988) (citation omitted).
Generally, sanctions under Fed. R. App. P. 38 and § 1912 are inappropriate
against a pro se appellant even if the appeal is frivolous. Woods v. IRS, 3 F.3d
403, 404 (11th Cir. 1993) (per curiam). Nevertheless, we have imposed sanctions
on pro se litigants who were warned by the district judge that their claims relating
21
to various tax issues were meritless. United States v. Morse, 532 F.3d 1130, 1132-
33 (11th Cir. 2008) (per curiam); King v. United States, 789 F.2d 883, 884 (11th
Cir. 1986) (per curiam).
While Pollinger’s claims are frivolous in nature, after reviewing the record
in full, and considering that Pollinger is a pro se appellant, we deny the
government’s motion for sanctions.
III. CONCLUSION
Pollinger appeals the district court’s grant of summary judgment on his
claims that the government disregarded the law in connection with the collection of
his federal tax. The government moves us to sanction Pollinger for maintaining a
frivolous appeal. As we have explained, we VACATE the judgment in part and
REMAND to the district court to dismiss Pollinger’s constitutional claims,
AFFIRM the district court’s judgment on Pollinger’s statutory claims, and DENY
the government’s motion for sanctions.
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CARNES, concurring in part and dissenting in part:
I concur in all of the Court's decision, except the denial of sanctions.
Notwithstanding the fact that the appellant is proceeding pro se, I would impose
sanctions because his arguments are all utterly frivolous, the district court's
decision put him on notice of that fact, and he still appealed. United States v.
Morse, 532 F.3d 1130, 1133 (11th Cir. 2008); Webb v. Commissioner of Internal
Revenue, 872 F.2d 380, 382 (11th Cir. 1989); Stoecklin v. Commissioner of
Internal Revenue, 865 F.2d 1221, 1226 (11th Cir. 1989).
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