[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                            No. 10-13446                 ELEVENTH CIRCUIT
                        Non-Argument Calendar                APRIL 11, 2011
                      ________________________                JOHN LEY
                                                               CLERK
                          Agency No. 21635-08L

TAYRA DE LA CARIDAD ANTOLICK,

                                                      lllllllllllllllllllllPetitioner,

                                  versus


COMMISSIONER OF INTERNAL REVENUE,

                                                   lllllllllllllllllllllRespondent.

                      ________________________

                  Petition for Review of a Decision of the
                          United States Tax Court
                       ________________________

                             (April 11, 2011)

Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
      Tayra de la Caridad Antolick pro se petitions for review of the U.S. Tax

Court’s denial of her motion to dismiss, grant of penalties under 26 U.S.C. § 6673,

and grant of summary judgment in favor of the Commissioner of the Internal Revenue

Service (“Commissioner”) on her petition for redetermination of deficiency. On

appeal, Antolick argues that: (1) the Tax Court erred in granting the Commissioner’s

motion for summary judgment because there was still a dispute over whether she had

paid her liability for the 1999 tax year; (2) the Tax Court should have granted her

motion to dismiss after she paid her tax liability shortly before a court hearing on the

Commissioner’s motions for summary judgment and for penalties because her

payment rendered the case moot; and (3) the Tax Court abused its discretion by

granting the Commissioner’s motion for penalties under 26 U.S.C. § 6673(a)(1)(A)

and (B) because she did not file her petition for purposes of delay and her arguments

were not frivolous. After careful review, we deny the petition.

      “We review the Tax Court’s factual findings for clear error and its legal

conclusions de novo.” Creel v. Commissioner, 

, 1139 (11th Cir. 2005).

We review de novo the Tax Court’s grant of summary judgment. Roberts v.

Commissioner, 

, 1227 (11th Cir. 2003). Summary judgment is proper

if the evidence before the court establishes that “there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of law.” 

omitted). “In deciding whether to grant summary judgment, the court examines the

facts in the light most favorable to the nonmoving party.” 

the Tax

Court’s imposition of penalties under § 6673(a)(1) for abuse of discretion. 

        First, we find no merit in Antolick’s claim that the Tax Court erred in denying

Antolick’s motion to dismiss and granting the Commissioner’s motion for summary

judgment.     The Tax Court has promulgated Rules of Practice and Procedure

governing the conduct of proceedings in that court. See 26 U.S.C. § 7453 (providing

that Tax Court proceedings shall be conducted in accordance with procedural rules

promulgated by that court). Under Rule 53, “[a] case may be dismissed for cause

upon motion of a party or upon the Court’s initiative.” Tax Court Rule 53.

        The doctrine of mootness derives from the case or controversy limitation of

Article III of the Constitution. Soliman v. United States, 

, 1242 (11th

Cir. 2002). “[A] case is moot when the issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 

, 496 (1969). The question of mootness asks whether “events that occur

subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to

give the plaintiff or appellant meaningful relief.” Al Najjar v. Ashcroft, 

, 1336 (11th Cir. 2001).

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      Here, the Tax Court did not err in denying Antolick’s motion to dismiss and in

granting the Commissioner’s motion for summary judgment. As the record shows,

Antolick told the court at the hearing that she was willing to pay her liability, but she

did not want to pay a penalty. Based on Antolick’s own statements, then, the court

did not err in finding that Antolick’s motive for moving to dismiss was not to concede

her case, but rather to avoid the § 6673 penalties, and Antolick failed to show cause

for granting the motion to dismiss. Furthermore, contrary to Antolick’s argument,

even if she had paid her liability before the hearing, the case was not moot because

the court still had to rule on the Commissioner’s motion for § 6673 penalties.

Bullock v. Commissioner, T.C. Memo 2006-139 (granting § 6673 penalties even after

petitioner tried to voluntarily dismiss her frivolous petition). Because the issue of

penalties was still “live,” the court did not err in denying Antolick’s motion for

dismissal. 

.

      Moreover, despite Antolick’s claim the issue of whether her payment

completely covered her liability remained unresolved, she has not shown that

summary judgment was inappropriate. Regardless of whether Antolick’s payment

fully covered her liability, by tendering payment, Antolick conceded that she owed

the liability, and there were therefore no genuine issues of material fact regarding




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Antolick’s 1999 tax liability. The Tax Court properly granted summary judgment in

the Commissioner’s favor. See 

.

      We also reject Antolick’s claim that the Tax Court abused its discretion in

imposing sanctions. The Tax Court may impose sanctions on a taxpayer if “(A)

proceedings before it have been instituted or maintained by the taxpayer primarily for

delay,” or “(B) the taxpayer’s position in such proceeding is frivolous or groundless.”

26 U.S.C. § 6673(a)(1)(A)-(B). In the context of an in forma pauperis application,

we have held that a claim is frivolous if “it lacks an arguable basis either in law or in

fact.” Miller v. Donald, 

, 1100 (11th Cir. 2008).

      The Tax Court did not abuse its discretion in imposing a penalty under § 6673

because Antolick’s petition was both filed primarily for delay and frivolous. As the

record shows, Antolick’s assertion that she maintained the proceedings because she

had not received a notice of deficiency is disingenuous -- she did not mention it in her

original Tax Court petition, and did not squarely raise it until she filed her amended

objection to the motion for summary judgment. Moreover, Antolick told the court

that she maintained the proceedings to have her questions answered, but Antolick

provides no explanation as to why she needed these questions answered to pay her

liability. Additionally, she waited until February 2010, less than a month before the

March 1 hearing, to submit payment to the Commissioner. This was a year and a half

                                           5
after filing her petition in the Tax Court and six years after the IRS mailed the notice

of deficiency. Thus, the record supports the conclusion that Antolick maintained the

proceedings for purposes of delay. See 

(holding that the

Tax Court did not abuse its discretion by imposing a sanction because the record

supported the conclusion that the petitioner had instituted the proceedings primarily

for delay).

      The record also shows that Antolick was aware that her arguments were

frivolous -- Antolick had at least two warnings from the Commissioner that her

arguments were frivolous before she filed her petition with the Tax Court -- and

indeed, all three of her arguments were in fact frivolous. At the time of her petition,

we had already identified Antolick’s “income” definition argument as frivolous.

Biermann v. Commissioner, 

, 708 (11th Cir. 1985) (holding that an

argument that the tax code does not define “income” is frivolous and noting that this

argument has been “rejected by courts at all levels of the judiciary”). Further,

Antolick’s Paperwork Reduction Act (“PRA”) argument was foreclosed by our prior

precedent. See United States v. Neff, 

, 700 (11th Cir. 1992) (holding

that the PRA provides “no refuge from [the] statutorily-imposed duty to file income

tax returns”). Finally, Antolick’s argument that there was inconsistency in caselaw

as to which section of the tax code imposed the duty to file a return is frivolous

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because she has failed to explain why it was necessary for the duty to file a return to

arise from only one section of the tax code, why this inconsistency affected the

collection of her tax deficiency, or why she could not rely on the statute itself instead

of looking to caselaw to determine the origin of the duty. See 26 U.S.C. § 6012

(stating that “[r]eturns with respect to income taxes under subtitle A shall be made by

the following,” and proceeding to list the individuals who must file a tax return).

Accordingly, the Tax Court did not abuse its discretion by granting sanctions against

Antolick under 26 U.S.C. § 6673(a)(1)(A), (B).

      PETITION DENIED.




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