United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-61029
Summary Calendar
RUSSELL STREIFFERT; SHARON STREIFFERT,
Petitioners - Appellants,
versus
INTERNAL REVENUE SERVICE,
Respondent - Appellee.
--------------------
Appeal of a Decision of the
United States Tax Court
No. 3613:04L
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioners Russell and Sharon Streiffert appeal from a
decision of the United States Tax Court. As discussed below, we
dismiss the appeal, deny Petitioners’ motions for summary
judgment and attorney’s fees, and grant respondent’s motion for
sanctions under Fed. R. App. P. 38 in the amount of $3,500.
In February 2001, Petitioners filed their 1998 federal
income tax return. On that return, they reported all zeros,
*
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that this opinion should not be published and is not precedent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.
except they claimed a refund of $5,115 for withholding amounts.
The IRS, having determined that Petitioners owed $15,267 in tax,
$2,538 for filing late, and $2,030 in accuracy-related penalties,
issued a notice of deficiency. After an administrative hearing
requested by Petitioners under 26 U.S.C. § 6330, the IRS notified
Petitioners that it had determined that their arguments were
frivolous and the IRS proposal to collect the tax by levy was
proper.
In February of 2004, Petitioners requested review of that
determination by the Tax Court under 26 U.S.C. § 6330(d)(1). The
petition argued, in essence, that the IRS has no authority to
impose or collect taxes. The Tax Court granted the IRS’s motion
to dismiss, ordering that the IRS could proceed with the proposed
levy, and ordering Petitioners to pay the United States $5,000 in
sanctions.
Petitioners filed a motion to vacate the order and decision
in May of 2004, which the Tax Court denied. In August of that
year, Petitioners filed an untimely motion for reconsideration of
the order and decision of the Tax Court, which also was denied.
In November of 2004 Petitioners filed an untimely notice of the
instant appeal. In their brief, they advance essentially the
same arguments presented to the Tax Court. Specifically, they
argue that they are “not subject to formal procedures of rules
and law, unless the [C]court declares that Petitioners are slaves
of the government” and that they are “Superior Sovereigns not
subject to law.”
Petitioners’ failure to file a timely notice of appeal is
fatal to our jurisdiction. Petitioners had 90 days from the date
of the decision of the Tax Court, May 13, 2004, to file a notice
of appeal. See 26 U.S.C. § 7483. The appeal period was tolled
under Fed. R. App. P. 13(a)(2) until May 21, 2004, the date the
Tax Court denied Petitioners’ timely motion to vacate the
decision. Petitioners’ untimely motion for reconsideration did
not further toll the filing period. See Fed. R. App. P. 13(a)(2)
(providing tolling for a “timely motion to vacate or revise the
Tax Court’s decision” (emphasis added)). Consequently, the 90-
day filing period expired on August 19, 2004. By the time
Petitioners filed a notice of the instant appeal in November, the
decision of the Tax Court was no longer subject to review. See
26 U.S.C. § 7481(a)(1). In any event, the arguments raised by
Petitioners have at all times been frivolous and without merit,
and we decline to entertain those arguments here. See Crain v.
Comm’r of Internal Revenue, 737 F.2d 1417, 1417 (5th Cir.
1984)(“[R]efut[ing] these arguments with somber reasoning and
copious citation of precedent . . . might suggest that these
arguments have some colorable merit.”).
Accordingly, the case is DISMISSED for lack of jurisdiction.
Petitioners’ motion for attorney’s fees and motion for summary
judgment are DENIED. Respondent’s motion for sanctions under
Rule 38 is GRANTED in the amount of $3,500.