IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60625
Summary Calendar
DREW ALLEN RAYNER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA; ET AL,
Defendants
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:99-CV-272-GR
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March 29, 2001
Before SMITH, BENAVIDES, and DENNIS Circuit Judges.
PER CURIAM:*
Drew Allen Rayner appeals from district court orders (1)
dismissing his claims against the United States, the Internal
Revenue Service (IRS) and various IRS officials seeking an income
tax refund and (2) denying his related request for a temporary
restraining order (TRO) to prevent IRS collection activities.
Because Rayner’s requests are patently frivolous, we AFFIRM the
judgments of the district court.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
On April 15, 1998, Rayner filed a Form 1040 federal income
tax return for the taxable year 1997. In that return, Rayner
reported that he had earned no income. In an attached letter,
Rayner explained his belief that income “can only be a derivative
of corporate activity.” Moreover, he stated that no tax had been
“assessed” against him. Consequently, Rayner maintained that he
was entitled to a full refund of the $6,237 that had been
withheld for taxes during the course of 1997. In September 1998,
the IRS notified Rayner that he had filed a “frivolous return”
for 1997 and that he had 30 days to correct it to avoid a
“frivolous return penalty.” Rayner did not respond to this
letter. On January 11, 1999, the IRS assessed a $500 penalty
against Rayner for filing a frivolous income tax return.
Subsequently, the IRS prepared a substitute federal income tax
return, then issued a notice of deficiency to Rayner. Though
Rayner apparently disagreed with the deficiency determination, he
did not petition the Tax Court for a recalculation.
Proceeding pro se, Rayner filed the present suit on July 8,
1999 asserting his entitlement to a refund of the taxes collected
from him, because no taxes had been properly assessed against
him. Rayner later filed a Rule 65(b) TRO motion seeking to
prevent the IRS from collecting any fines assessed against him.
On August 16, the IRS made an assessment against Rayner for
$10,966, then informed Rayner of his $4,729 tax balance for 1997.
In December 1999, the district court denied Rayner’s request
for a TRO after finding that Rayner “failed to offer any argument
or evidence to show that the government is unlikely to prevail on
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the merits under any circumstances.” The next month the
district court dismissed Rayner’s action against the IRS and
individual IRS officers pursuant to Rule 12(b)(2). The district
court dismissed Rayner’s remaining claim against the United
States pursuant to Rule 12(b)(1) and (b)(6) in June of 2000. The
court concluded that it lacked subject matter jurisdiction over
the suit because Rayner failed to completely pay the taxes
assessed against him. Alternatively, the court held that
dismissal pursuant to 12(b)(6) was proper because Rayner’s claim
that no taxes had been assessed against him had no legal basis
and was, in any event, rendered moot by the August 16, 1999
assessment issued by the IRS.
Rayner’s appeal is completely devoid of relevant legal
authority and, therefore, patently frivolous. See Olympia Co.,
Inc. v. Celotex Corp., 771 F.2d 888, 893 (5th Cir.1985) (stating
that a "frivolous appeal is one which involves legal points not
arguable on the merits") (citation omitted), cert. denied, 493
U.S. 818, 110 S.Ct. 73, 107 L.Ed.2d 39 (1989). At the bottom of
Rayner’s claim for a tax refund is his “strong belief” that he
had no taxable income in 1997. Yet, Rayner has failed to provide
a single comprehensible legal argument in support of this belief
or the points of error raised in this appeal.
In light of this complete absence of authority, the district
court properly dismissed Rayner’s claims against the IRS and
individual defendants pursuant to Rule 12(b)(2). See 26 U.S.C. §
7422(f)(1)(explaining that a refund suit “may be maintained only
against the United States and not against any officer or employee
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of the United States (or former officer or employee) or his
personal representative”). The district court also did not err
in dismissing Rayner’s claim against the United States for lack
of jurisdiction, see Flora v. United States, 362 U.S. 145, 177
(1960) (requiring “full payment of the [tax] assessment before an
income tax refund suit can be maintained in a Federal District
Court.”); Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir.
1994), and for failure to state a claim on which relief can be
granted. See In re Swift, 129 F.3d 792, 799 n.41 (5th Cir.
1997). As to Rayner’s TRO request, the district court could have
abused its discretion only by granting relief since Rayner
provided absolutely no legal basis for successfully obtaining a
refund of taxes paid. See FED. R. CIV. PROC. 65(b). Though Rayner
does not raise the magistrate’s decisions to stay all discovery
as an issue on appeal, we note for the sake of completeness that
neither the district court nor the magistrate judge abused its
discretion in this regard.
Rayner’s appeal surpasses mere frivolity and registers an
extraordinary score on the appellate scale of vexation. Mr.
Rayner is given notice that future frivolous appeals will be
subject to the full panoply of sanctions authorized by Federal
Rule of Appellate Procedure 38. We encourage the government to
consider moving for such sanctions if faced with frivolous
actions like this one in the future.
AFFIRMED.
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Rayner v. United States
Combined Opinion