USCA1 Opinion
May 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1916
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
BRIAN R. GARDELL,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
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Before
Torruella, Boudin and Stahl,
Circuit Judges.
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Brian R. Gardell on brief pro se.
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Michael L. Paup, Acting Assistant Attorney General, Gary R.
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Allen, Charles E. Brookhart and Scott P. Towers, Attorneys, Tax
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Division, Department of Justice on brief for appellee.
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Per Curiam. Appellant Brian Gardell appeals an order of
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the United States District Court for the District of New
Hampshire approving the report and recommendation of the
magistrate judge that he comply with an Internal Revenue
Service [IRS] summons issued pursuant to 26 U.S.C. 7602.
The administrative summons directs Gardell to appear at the
IRS office in Portsmouth, New Hampshire, to give testimony
and to produce for examination books and records relating to
his tax liabilities for the years 1985 and 1987. Tax
liabilities had previously been assessed against Gardell for
these years and the purpose of the summons was to determine
the collectability of these liabilities. On appeal, Gardell
asserts that the district court lacked jurisdiction to
enforce the summons since Gardell has the "Status . . . of
Freeman and . . . has no Contractual, Quasi-Contractual or
implied agreements with the Federal Government." He also
contends that the enforcement of the summons violated his
constitutional right to due process. We affirm essentially
on the grounds stated by the magistrate judge in his report
and recommendation dated July 7, 1993. We add only the
following remarks.
First, Gardell's contention that as a "Freeman" without
contractual obligations to the government he is not subject
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to the district court's jurisdiction is totally without
merit.1 See United States v. Sloan, 939 F.2d 499, 500-01
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(7th Cir. 1991) (contention that appellant was free from
income tax because he was a "freeborn, natural individual .
. . [and thus] not subject to the jurisdiction of laws of the
United States" is frivolous), cert. denied, 112 S.Ct. 940
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(1992); United States v. Drefke, 707 F.2d 978, 981 (8th Cir.
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1983) (claim that "taxes are debts which can only be incurred
voluntarily when individuals contract with the government for
services . . . is totally without arguable merit"), cert.
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denied, 464 U.S. 942 (1983). The district court has subject
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matter over a petition to enforce an IRS administrative
summons pursuant to 26 U.S.C. 7604(a). It acquired
personal jurisdiction over Gardell through service upon him
of the show cause order and the petition of enforcement.
United States v. Bichara, 826 F.2d 1037, 1039 (11th Cir.
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1987); United States v. Miller, 609 F.2d 336, 338 (8th Cir.
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1979).
Second, the record makes clear that the IRS has met its
burden of establishing a prima facie case for enforcement of
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1. Similarly frivolous is Gardell's contention that the
taxing of wages is unconstitutional. See, e.g., Wilcox v.
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Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) (contention
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that wages are not income for tax purposes is frivolous);
Casper v. Commissioner, 805 F.2d 902, 906 (10th Cir. 1986)
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(appellant's contention that amount he received from his
employer is not taxable income is "clearly without merit")
(citing cases).
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the administrative summons as set out in United States v.
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Powell, 379 U.S. 48 (1964). See also Sylvestre v. United
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States, 978 F.2d 25, 26 (1st Cir. 1992), cert. denied, 113
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S.Ct. 1606 (1993). Gardell, who concedes that the IRS
satisfied these requirements, thereupon bears the burden of
showing, by an allegation of specific facts, that the
enforcement of the summons would constitute an abuse of the
court's process--"that is, that the summons had been issued
for an improper purpose or for any other purpose reflecting
on the good faith of the investigation." Id. at 27 (citing
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Powell, 379 U.S. at 58). The only arguments Gardell raised
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in this regard either before this court or before the
district court challenge the liabilities which were assessed
against him and which underlie the summons. However, a
challenge to an assessment of liability can only be brought
in Tax Court within ninety days of the mailing of a notice of
deficiency, see 26 U.S.C. 6213(a), or before the district
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court after the payment of the tax, id. 7422 (until tax is
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paid, district court without jurisdiction to hear allegation
that tax has been erroneously assessed).2 A challenge to
the underlying assessment is not a valid defense to the
enforcement of an administrative summons, United States v.
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2. There is no evidence that Gardell ever attempted to file
a petition for redetermination of his liabilities with the
Tax Court. According to this IRS, the time to challenge
Gardell's tax liability in Tax Court has now passed.
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Harper, 662 F.2d 335, 336 (5th Cir. 1981) (per curiam)
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(taxpayer challenge to underlying assessment does not suffice
to meet his burden to show improper purpose), and is
misplaced in an appeal from a district court order enforcing
one, United States v. Mueller, 930 F.2d 10, 12 (8th Cir.
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1991) ("district court correctly held that [the summoned
party] could not use the proceedings to enforce the IRS
summons as a forum in which to contest the validity of the
underlying assessments."). Since Gardell was afforded an
opportunity to challenge the administrative summons in an
adversarial proceeding before the district court prior to the
enforcement of the summons, he suffered no deprivation of his
constitutional right to due process. See Reisman v. Caplin,
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375 U.S. 440, 446, 449-50 (1964) (no constitutional
invalidity in procedure for enforcement of summons since
there is "full opportunity for judicial review before any
coercive sanctions may be imposed"); United States v.
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Gilleran, 992 F.2d 232, 233-34 (9th Cir. 1993) ("no liberty
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or property interest protectable by due process prior to the
enforcement of the summons") .
Finally, the IRS asks this court to impose sanctions
against appellant for bringing a frivolous appeal. Gardell's
challenges to the administrative summons are frivolous and/or
misplaced. Both this court and others have not hesitated to
impose sanctions for similarly frivolous appeals. See, e.g.,
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Kelly v. United States, 789 F.2d 94, 98 (1st Cir. 1986)
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(imposing sanctions on appellant who claimed that because he
was a "natural individual and unenfranchised freeman" who
neither asked for nor received privileges from government he
owed no tax); Sullivan v. United States, 788 F.2d 813, 816
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(1st Cir. 1986) (similar); see also Wilcox, 848 F.2d at 1008
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(appellant contended wages are not income and payment of
taxes is voluntary); Casper v. Commissioner, 805 F.2d at 906
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(similar). We agree that sanctions are warranted in this
case. Although the Government seeks $1,500 in lieu of costs
and attorneys' fees, we, in accord with our prior practice in
similar cases, assess only double costs against Gardell for
bringing a frivolous appeal. Fed. R. App. P. 38.
The judgment of the district court is affirmed. Double
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costs are assessed against appellant.
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