Richard Walbaum v. Commissioner of IRS

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3695
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Richard E. Walbaum, *
*
Appellant, *
* Appeal from the United States
v. * Tax Court.
*
Commissioner of Internal Revenue, * [UNPUBLISHED]
*
Appellee. *
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Submitted: July 1, 2010
Filed: July 23, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Richard Walbaum appeals the tax court’s1 dismissal of his petition challenging
notices of deficiency for tax years 2003, 2004, and 2006. Walbaum argues that the
tax court erred by refusing to accept his corrected tax returns, and by not shifting the
burden of proof regarding the deficiencies to the IRS Commissioner; he also asserts
several tax-protestor arguments. The Commissioner has moved for sanctions against
Walbaum.
1
The Honorable Robert N. Armen, Jr., United States Tax Court Judge.
After careful de novo review, see Norwood v. Dickey, 409 F.3d 901, 903 (8th
Cir. 2005) (de novo review standard); Campbell v. Comm’r, 164 F.3d 1140, 1142 (8th
Cir. 1999) (taxpayer bears burden of proving that Commissioner’s determination was
erroneous), we conclude that the dismissal of Walbaum’s petition was proper for the
reasons stated by the tax court. We further conclude that the tax court was not
required to shift the burden of proof regarding the deficiencies to the Commissioner,
see Scherping v. Comm’r, 747 F.2d 478, 480 (8th Cir. 1984) (per curiam) (in
deficiency actions Commissioner’s determination is presumed correct, and petitioner
bears burden to prove otherwise); see also 26 U.S.C. § 7491(a) (describing
circumstances where burden shifts), and that the tax-protestor arguments raised by
Walbaum are frivolous, see United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir.
1993) (per curiam) (we have rejected, on numerous occasions, tax-protestor argument
that federal income tax is unconstitutional direct tax that must be apportioned; wages
are within definition of income under Internal Revenue Code and Sixteenth
Amendment, and are subject to taxation); United States v. Latham, 754 F.2d 747, 750
(7th Cir. 1985) (argument that category “employee” in 26 U.S.C. § 3401(c) does not
include privately employed wage earners is “preposterous” reading of statute);
Denison v. Comm’r, 751 F.2d 241, 242 (8th Cir. 1984) (per curiam) (rejecting as
frivolous taxpayer’s arguments that wages were not income and that Internal Revenue
Code was unconstitutional).
Regarding the motion for sanctions, we may award “just damages” and single
or double costs if we determine that an appeal is frivolous. See 28 U.S.C. § 1912;
Fed. R. App. P. 38. In this case, we conclude that Walbaum has filed a frivolous
appeal and that sanctions are appropriate. See Gerads, 999 F.2d at 1256-57 (granting
government’s motion for sanctions where appellant brought frivolous appeal based
on tax-protester argument).
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Accordingly, we affirm the dismissal, and we grant the Commissioner’s motion
for sanctions in the amount of $5000.00.
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