860 F2d 1090 Webb v. Commissioner of Internal Revenue

860 F.2d 1090

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Thomas B. WEBB, Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE SERVICE, Respondent-Appellee.

No. 87-7474.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 20, 1988.*
Decided Oct. 13, 1988.

Before JAMES R. BROWNING, HUG and BEEZER, Circuit Judges.

1

MEMORANDUM**

2

Appellant Thomas B. Webb appeals the Tax Court's dismissal of his petition for failure to state a claim upon which relief could be granted. We review Webb's claims de novo, find them meritless, and affirm.

3

Webb failed to file a federal income tax return for the tax year 1983. In October 1986, the Internal Revenue Service issued a notice of deficiency for accumulated tax, interest, and penalties on undeclared income of $34,325. Webb petitioned the Tax Court for redetermination. The respondent Commissioner moved to dismiss for failure to state a claim upon which relief could be granted. Webb filed an amended petition. The Tax Court granted the Commissioner's motion, found tax liability, and awarded the Commissioner $5,000 in damages under 26 U.S.C.A. Sec. 6673 (West.Supp.1988). Webb's motion for reconsideration was denied. He appeals the dismissal and the damages.

4

Webb contests the Tax Court's determination that the assignments of error in his petition were insufficiently clear and concise to state a cognizable claim. A petitioning taxpayer must allege "clear and concise assignments of each and every error which the petitioner alleges to have been committed by the Commissioner in the determination of the deficiency or liability." Tax Ct.R. 34(b)(4). The assignments of error must be supported by "[c]lear and concise lettered statements of the facts on which petitioner bases the assignments...." Tax Ct.R. 34(b)(5).

5

Webb's initial and amended petitions failed to allege errors and supporting facts with the necessary specificity. Rather, Webb provided mere conclusory allegations that the Commissioner's determination was wrong, without any specific facts to support the allegations. Dismissal was proper. See Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir.1985).

6

Webb raises constitutional objections to the Tax Court's dismissal of his petition. These objections are meritless. Dismissal of a claim upon which relief could not be granted without a formal hearing did not violate due process. See Nunley v. Commissioner, 758 F.2d 372, 372-73 (9th Cir.1985) (per curiam). Denial of a jury trial in Tax Court did not violate the seventh amendment. McCoy v. Commissioner, 696 F.2d 1234, 1237 (9th Cir.1983). The dismissal of a groundless petition and imposition of sanctions did not violate the first amendment. Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir.1985) (per curiam).

7

The Tax Court may impose a penalty, not to exceed $5,000, on a taxpayer who maintains a proceeding primarily for delay or who brings a frivolous and groundless action. 26 U.S.C.A. Sec. 6673 (West Supp.1988). We review the Tax Court's award of $5,000 in damages to the Commissioner for abuse of discretion. See Larsen, 765 F.2d at 941.

8

In his petition, Webb failed to specify errors, and specific facts supporting those errors, sufficient to state a claim. His amended petition failed to correct the deficiency. The Tax Court's finding that Webb's petition was frivolous and was filed primarily for delay is well supported by the record. The award of $5,000 damages under 26 U.S.C.A. Sec. 6673 was not an abuse of discretion.

9

The Commissioner's request for sanctions for a frivolous appeal is denied.

10

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3