Robert W. Herriman v. Commissioner of IRS

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14119
Non-Argument Calendar
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Agency No. 25048-11
ROBERT W. HERRIMAN,
Petitioner-Appellant,
versus
COMMISSIONER OF IRS,
Respondent-Appellee.
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Petition for Review of a Decision of the
U.S.Tax Court
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(June 11, 2013)
Before HULL, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Herriman, proceeding pro se, appeals the tax court’s dismissal of his
petition for redetermination of his tax deficiency. On appeal, he argues that his
income was not subject to federal taxation. The Commissioner has also moved for
sanctions, pursuant to Federal Rule of Appellate Procedure Rule 38, in the amount
of $8,000.
I.
We review the tax court’s grant of a motion to dismiss de novo. Pollard v.
Comm’r, 816 F.2d 603, 604 (11th Cir. 1987). The taxpayer bears the burden of
showing that the Commissioner’s determination of a deficiency is erroneous. Id.A taxpayer’s frivolous argument does not establish that the determination of
deficiency is erroneous and thus warrants a dismissal of the petition by the tax
court. Id.We have found “utterly without merit” the argument that the Internal
Revenue Code limits the meaning of “state” and “United States” to the District of
Columbia and the United States territories. United States v. Ward, 833 F.2d 1538,
1539 (11th Cir. 1987). Additionally, the Sixteenth Amendment provides that
“Congress shall have power to lay and collect taxes on incomes, from whatever
source derived, without apportionment among the several States.” U.S. Const.
amend. XVI. We have rejected as frivolous the argument “that withholding of tax
from wages is a direct tax on the source of income without apportionment in
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violation of the Sixteenth Amendment.” Motes v. United States, 785 F.2d 928, 928
(11th Cir. 1986).
The tax court did not err in dismissing Herriman’s petition. We have
previously rejected as frivolous and without merit his arguments that the Internal
Revenue Code applies only to the District of Columbia and the United States
territories and that the withholding of taxes from wages is an unconstitutional
direct income tax without apportionment. See Ward, 833 F.2d at 1539; Motes, 785
F.2d at 928. Because Herriman’s arguments are frivolous, he did not establish that
the determination of his tax deficiency was erroneous, and the tax court correctly
dismissed his petition. See Pollard, 816 F.2d at 604. Accordingly, we affirm.
II
The Commissioner moves for sanctions to be imposed against Herriman for
maintaining a frivolous appeal, pursuant to Rule 38 of the Federal Rules of
Appellate Procedure and 28 U.S.C. § 1912. The Commissioner reports that the
average expense in attorney salaries and other costs incurred in the defense of
frivolous taxpayer appeals in which sanctions were awarded during 2009 and 2011
is greater than $12,500 and asks that this Court impose a sanction against Herriman
in the amount of $8,000.
Pursuant to Rule 38, “[i]f a court of appeals determines the appeal is
frivolous, it may, after a separately filed motion or notice from the court and
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reasonable opportunity to respond, award just damages and single or double costs
to the appellee.” Fed. R. App. P. 38; see also 26 U.S.C. § 7482(c)(4) (“The United
States Court of Appeals and the Supreme Court shall have the power to require the
taxpayer to pay to the United States a penalty in any case where the decision of the
Tax Court is affirmed and it appears that the appeal was instituted or maintained
primarily for delay or that the taxpayer's position in the appeal is frivolous or
groundless.”); 28 U.S.C. § 1912 (“Where a judgment is affirmed by the Supreme
Court or a court of appeals, the court in its discretion may adjudge to the prevailing
party just damages for his delay, and single or double costs.”). In Pollard, for
example, we imposed a lump-sum sanction against the appellant because his
arguments had previously been rejected as frivolous by us and because he was
warned that his arguments were frivolous when he was sanctioned by the tax court.
816 F.2d at 605.
Because we have previously rejected Herriman’s arguments as frivolous and
because Herriman was warned that his arguments were frivolous when he was
sanctioned by the tax court, Rule 38 sanctions against Herriman are appropriate.
We grant the Commissioner’s motion for a lump-sum sanction in the amount of
$8,000. See Ward, 833 F.2d at 1539; Pollard, 816 F.2d at 605; Motes, 785 F.2d at
928.
III.
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For the foregoing reasons, we affirm the dismissal of Herriman’s petition
and grant the Commissioner’s motion for sanctions.
AFFIRMED; the Commissioner’s motion for sanctions in the lump-sum of
$8,000 is GRANTED.
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