United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2006
Charles R. Fulbruge III
Clerk
No. 04-61118
Summary Calendar
CHERYL JEANNE GITTINGER; LEONARD JOHN GITTINGER, III
Petitioners - Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee.
Appeal of a Decision of the
United States Tax Court
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, CIRCUIT JUDGE:
Leonard Gittinger, III did not file a tax return for the years
1997 through 2001. His wife, Cheryl Gittinger, failed to file a
return for the years 1999 and 2000. The Commissioner of the
Internal Revenue Service notified the Gittingers of the
deficiencies. The Gittingers responded by filing the petition at
issue with the United States Tax Court, asserting primarily that
the government cannot tax their wages as income. The Commissioner
moved for summary judgment, and the Gittingers filed a voluminous
response. The Tax Court granted judgment for the Commissioner,
determining that the Gittingers were liable for the existing
deficiencies and penalties. In addition, the court, sua sponte,
imposed new penalties. The Gittingers appealed.
This is not Mr. Gittinger’s first rendezvous with the Tax
Court. He made the same argument to the court in a challenge to
his tax liabilities for the year 1996. In that challenge, the Tax
Court rejected his contention that wages are not income, and this
Court affirmed and granted the Commissioner’s request for
sanctions. Gittinger v. Comm’r, 138 F. App’x 646, 648 (5th Cir.
2005) (unpublished) (describing Gittinger’s argument “as completely
and utterly frivolous”). Apparently, Mr. Gittinger wants another
go-round.
The Tax Court correctly described the Gittingers’ petition as
consisting of “tax protestor rhetoric.” On appeal, the Gittingers
repeat that rhetoric. They list nineteen separate issues, but only
one is pertinent: “Whether the allegations in the petition and
. . . instant proceeding are ‘frivolous and groundless?’” The
answer is yes.1 To see this fact, Mr. Gittinger need only have
referred to the result in the action concerning his 1996 tax
1
This determination includes consideration of the
Gittingers’ improper notice argument. Mr. Gittinger contends
that the notice was defective because it did not include the
“III” designation. He makes this argument despite the fact that
the notice (1) had his social security number on it, (2) was
addressed to “Leonard J. Gittinger,” and (3) was sent to his
address.
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liabilities. Mr. Gittinger certainly knew how to access that
result; he is a licensed attorney who has been practicing law in
Texas since 1984.
Given the frivolous nature of this appeal, “[w]e perceive no
need to refute these arguments with somber reasoning and copious
citation of precedent; to do so might suggest that these arguments
have some colorable merit.” Crain v. Comm’r, 737 F.2d 1417, 14, 17
(5th Cir. 1984). We AFFIRM the Tax Court’s grant of summary
judgment.
In addition, we agree with the Commissioner that sanctions are
appropriate. See 26 U.S.C. § 7482(c)(4) (2000) and Fed. R. App. P.
38; see also Tello v. Comm’r, 410 F.3d 743, 744 (5th Cir. 2005) (“A
party who continues to advance long-defunct arguments invites
sanctions.”). It is therefore ORDERED that Appellee’s motion for
sanctions in the amount of $6000.00 is GRANTED. See Tello, 410
F.3d at 745 (approving the practice of imposing a lump sum
sanction).
3