United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-60863
Summary Calendar
LEONARD JOHN GITTINGER, III,
Petitioner-Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE
Respondent-Appellee
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Appeal from the United States Tax Court
14996-03L
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:*
Petitioner-Appellant Leonard John Gittinger, III
(“Gittinger”) failed to file a tax return for the tax year 1996.
After determining that Gittinger failed to report wage, dividend
and interest income paid to him during 1996, Respondent-Appellee
Commissioner of Internal Revenue (“IRS”) mailed to Gittinger on
December 4, 1998 a notice of deficiency for 1996. Although
Gittinger has acknowledged that he received the notice of
*
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that this opinion should not be published and is not precedent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.
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deficiency from the IRS, he failed to challenge the notice. On
November 24, 2001, the IRS sent Gittinger a Final Notice of
Intent to Levy and Notice of Your Right to a Hearing (“levy
notice”) with regard to his unpaid taxes for 1996. On September
6, 2002, the IRS mailed to Gittinger a Notice of Federal Tax Lien
Filing and Notice of Your Right to a Hearing with regard to his
unpaid taxes for 1996.
Gittinger finally responded to the IRS on October 7, 2002
when he submitted a Request for a Collection Due Process Hearing.
On July 31, 2003, the IRS mailed to Gittinger a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 (“notice of determination”) which stated that the IRS
had determined that it was appropriate to file the disputed
federal tax lien. On August 5, 2003, the IRS mailed to Gittinger
a Decision Letter Concerning Equivalent Hearing (“decision
letter”) which stated that the IRS had determined that it was
appropriate to proceed with the proposed levy.
On September 5, 2003, Gittinger filed a Petition for Lien or
Levy Action in the tax court below challenging both the notice of
determination dated July 31, 2003 and the decision letter dated
August 5, 2003.
On June 22, 2004, the tax court granted summary judgment in
favor of the IRS, sustaining the notice of determination. The
tax court found (1) that Gittinger had waived his right to
challenge his underlying tax liability by failing to respond to
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the notice of deficiency for 1996 that was mailed to him on
December 4, 1998;1 (2) that even had he not waived his right to
challenge the tax liability, his argument that he is not a
“taxpayer” was frivolous and groundless; and (3) that Gittinger
did not allege any irregularity in the assessment procedure, nor
did he assert any valid defenses or offer an alternative means of
collection.
DISCUSSION
On appeal, Gittinger advances the same frivolous and
groundless arguments that he advanced below. As the tax court
properly found, Gittinger waived his right to challenge the
underlying tax liability for 1996 by failing to file a timely
response to the notice of deficiency mailed to him on December 4,
1998. See Goza v. Commissioner, 114 T.C. 176 (2000); I.R.C. §
6330(c)(2)(B). Even had he not waived his right to challenge the
underlying tax liability, his arguments are completely and
utterly frivolous, generally relating to the proposition that
wage income is not taxable income. See I.R.C. §§ 1(a)(1),
61(a)(1), 7701(a)(1), (14). As we have previously noted, there
is no need for us to refute “with somber reasoning and copious
citation of precedent” the notion that wages are not income, lest
by doing so we suggest that this argument has some colorable
1
See Goza v. Commissioner, 114 T.C. 176 (2000); I.R.C. §
6330(c)(2)(B).
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merit. Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir.
1984).
After Gittinger had procedurally defaulted his ability to
challenge the underlying tax liability, the only issues before
the tax court were whether the IRS followed proper procedures and
complied with all applicable laws and administrative procedures
in this case and whether Gittinger raised any valid defenses.
Because Gittinger did not even allege any irregularity in the
assessment procedure and he did not raise a valid defense or
offer an alternative means of collection, we have no difficulty
whatsoever affirming the tax court’s judgment.
For the foregoing reasons, the tax court’s judgment is in
all ways AFFIRMED, and Respondent-Appellee’s motion for sanctions
under Rule 38 in the amount of $6,000.00 is GRANTED.
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