William Stearman, III, pro se, appeals the judgment of the United States Tax Court dismissing his two consolidated cases for failure to state a claim and failure to prosecute and sanctioning him $12,500 per case under 26 U.S.C. § 6673 for advancing frivolous positions and maintaining the proceedings primarily for delay.1 Stearman also requests damages under § 6673 against the Tax Court judge and opposing counsel in an amount "at least equal to the amount of the `judgment.'" We affirm and grant the Commissioner's motion to impose sanctions for maintaining a frivolous appeal.

We review de novo the dismissal for failure to state a claim, Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 246 (5th Cir.1997), and review for abuse of discretion the dismissals for failure to prosecute and the imposition of sanctions under § 6673, Tello v. Comm'r, 410 F.3d 743, 744 (5th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 381, 163 L. Ed. 2d 167 (2005). Dismissals with prejudice for failure to prosecute are proper only where (1) there is a clear record of delay or contumacious conduct by the plaintiff and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile. Tello, 410 F.3d at 744.

In most cases, a plain record of delay or contumacious conduct is found if one of the three aggravating factors is also present: (1) delay caused by the plaintiff; (2) actual prejudice to the defendant; or (3) delay as a result of intentional conduct. Id. In Tello, we found that the Tax Court had properly dismissed the case because of the plaintiff's (1) failure to appear at the calendar call and recall of his case; (2) failure to cooperate with the Commissioner in preparing a stipulation of facts; (3) refusal to address the merits of the case; (4) wilful ignorance of warnings to stop making frivolous arguments; and (5) wasting the time and resources of the Tax Court. Id.

Stearman, like the plaintiff in Tello, failed to appear at the call of the consolidated cases despite being sent a notice setting the case for trial and stating that "[HIS] FAILURE TO APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST [HIM]." Stearman did not explain his non-appearance.

Also, like the plaintiff in Tello, Stearman failed to cooperate in that he refused to comply with the Tax Court's order to file, with that court, his requests for admissions. The notice setting the case for trial stated that "[HIS] FAILURE TO COOPERATE MAY ALSO RESULT IN THE DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST [HIM]." Stearman served a request for admissions on the government without filing it with the Tax Court. The request asked the government to admit that "`Taxpayer' means fiduciary," that the "`United States' is a federal corporation," and that the "`UNITED STATES OF AMERICA' is another federal corporation." The Tax Court ordered Stearman to file the request with the court, as required by Tax Court Rule 90(b).

Instead of cooperating by complying with the order, Stearman filed a "status report" asking "YOU WANT WHAT? BY WHEN? If you haven't figured this out yet, the olive branch has been withdrawn" and stating "Vasquez,2 you've lost your mind! Go butt a stump!!"3 The "status report" also called the Tax Court a "kangaroo court" and stated that taxpayer "has absolutely no intention of `returning' or `refiling' those original discovery documents . . . given that those documents are now evidence for the pending criminal investigation of what may involve a whole stinking group of you people."4 Stearman explained that he would not "refile" the requests of admission with the Tax Court because the "insane tampering with the Record epidemic that runs amuck in the Tax Court is not Petitioner's problem."

Further, in retort to the Commissioner's motion to dismiss for failure to state a claim, Stearman filed a response, also including an "Anticipatory Rule 60(b) Motion," which did not address the merits of the motion to dismiss but asserted that the Tax Court judge "is incompetent and biased and has no authority, whatsoever," and that the judge had not allowed sufficient time to respond to the motion to dismiss.5 The response stated that the Tax Court's order to respond was "completely unlawful and mindless" and characterized the motion to dismiss as "utterly and facially sanctionable crap."6

It is evident that Stearman engaged in a pattern of delay and contumacious conduct before the Tax Court and that the delay was caused by his personal and intentional conduct. He expressly refused to file items required by the court's rules and an explicit court order, although he had been warned that the sanction for failure to cooperate could be dismissal.

Stearman also failed to appear at trial although he had been warned that the sanction for this action could also be dismissal. In his response to the motion to dismiss, he refused to address the merits of the motion, but rather insulted the judge. His insults to the judge, opposing counsel, and the Tax Court, and his general contempt and defiance of the court's authority and accusations of criminal conduct are intentional, not mistakes or oversights. As we explained in John v. Louisiana, 828 F.2d 1129, 1131 (5th Cir.1987), it is not a party's negligence, regardless of how careless or inconsiderate, that makes conduct contumacious; instead, it is "the stubborn resistance to authority" that justifies a dismissal with prejudice.

Moreover, Stearman's frivolous arguments, insults, failure to cooperate and other dilatory practices wasted the Tax Court's resources. Because Stearman was pro se, he was also personally responsible for the delay.

Given the obstinate and harassing nature of Stearman's conduct, including his wilful failure to cooperate and to appear at trial despite the judge's explicit warnings, it is apparent from the record that lesser sanctions were futile.7 Therefore, the dismissal for failure to prosecute is proper under Tello, 410 F.3d at 744.8

We also affirm the dismissal for failure to state a claim. Whatever arguments Stearman may have on appeal on why dismissal for failure to state a claim was improper are waived because he did not raise them in his invective-filled response to the motion to dismiss.9

We also agree with the Tax Court that Stearman "has advanced shopworn arguments characteristic of tax-protester rhetoric that has been universally rejected by this and other courts." T.C. Memo 2005-39, 2005 WL 488646. Stearman appears to have borrowed his theories and litigating strategy from the taxpayer in Tello v. Comm'r, 143 Fed.Appx. 568 (5th Cir.) (per curiam), cert. denied, ___ U.S. ___, 126 S. Ct. 667, ___ L.Ed.2d ___ (2005).

As with Stearman, the plaintiff in Tello did not deny receiving the income stated in the notice of deficiency or the fact that he did not file a tax return for the years at issue. Also as here, Tello alleged that the notice of deficiency was improper because (1) the accounting method the Commissioner employed was not as suitable as Tello's preferred accounting method; (2) the Commissioner is not permitted to provide accounting services in the State of Texas; (3) the Commissioner is not permitted to practice law in the State of Texas; and (4) the taxpayer has no "fiduciary obligation" to pay taxes to the Internal Revenue Service.10 Id. In Tello, we affirmed the Tax Court's dismissal for failure to state a claim, labeling the claims as "patently frivolous."11 For the same reasons, we affirm here.

Furthermore, the Tax Court did not abuse its discretion in sanctioning Stearman $12,500 per case under § 6673(a), which allows sanctions where a taxpayer institutes or maintains a proceeding primarily for delay or his position in the proceeding is frivolous or groundless. As discussed above, Stearman failed properly to prosecute his case, which indicates that he maintained the proceedings primarily for delay, and his position in the proceeding was utterly frivolous.

The Commissioner moves in this court to sanction Stearman $6,000 for maintaining a frivolous appeal so that the government can be compensated for the cost of defending this appeal. Stearman has not responded to the motion; his main arguments on appeal are the same frivolous ones he advanced in the Tax Court.

As we recently cautioned in Tello, 410 F.3d at 745, a party who continues to advance long-defunct arguments invites sanctions.12 Sanctions on pro se litigants are appropriate if they were warned, as Stearman was, that their claims are frivolous and if they were aware of "ample legal authority holding squarely against them." Stelly v. Comm'r, 761 F.2d 1113, 1116 (5th Cir.1985) (per curiam) ("Although a court can demand a higher degree of responsibility from members of the bar, litigants cannot be treated as free to advance frivolous claims merely because they appear without counsel."). Because Stearman explicitly questions the wisdom of the Tello cases in his brief, he must have been aware that the Tello cases rejected the theories that he advanced as patently frivolous.13 We accordingly grant the motion for sanctions of $6,000 for pursuing a frivolous appeal pursuant to 26 U.S.C. § 7482(c)(4), 28 U.S.C. § 1912, and Federal Rule of Appellate Procedure 38.14

Moreover, because the sanctions imposed by the Tax Court (cumulatively $25,000) did not deter Stearman from pursuing the same frivolous arguments on appeal, we impose sua sponte an additional sanction of $6,000. See 28 U.S.C. § 1912; FED. R.APP. P. 38. As pointed out in Coghlan, 852 F.2d at 808 & n. 1, "there is no question that the courts of appeals have the ability to impose sanctions sua sponte." As we warned in Stelly, 761 F.2d at 1115-16, sanctions greater than reasonable attorney's fees and double costs may "be imposed under appropriate circumstances." In Stoecklin v. Comm'r, 865 F.2d 1221 (11th Cir. 1989), for example, the court doubled sua sponte the amount of lump-sum appellate sanctions requested by the Commissioner because the circumstances indicated that higher damages were appropriate.15

The extraordinary circumstances of this case indicate that greater sanctions are called for. Stearman knew that this court had dismissed similar arguments as frivolous in the Tello cases, as shown by Stearman's offensive insinuations with respect to this court's alleged lack of preparation in those cases.16 He was also warned by the Tax Court that his arguments are frivolous. Yet on appeal, rather than explaining why the Tax Court committed error, Stearman restated the myriad of claims with which he inundated the Tax Court and added insults to the address of the Tax Court,17 and, as discussed above, of this court. Stearman's contempt for the judicial system further demonstrates that he did not institute the proceedings in good faith, but merely to harass the collection of public revenues.

The $12,000 in sanctions is modest compared to the amount of unpaid taxes Stearman owes for 1999, 2000 and 2001, which exceeds $280,000. Although Stearman styles himself as a "moron pro se from hickville Texas," his annual income for 1999, 2000 and 2001 suggests that he may not be as unsophisticated as he pretends and that his pro se status relates to an unwillingness, not an inability, to secure an attorney.

Even if we were to assume that Stearman is unsophisticated, what distinguishes this case from other tax protester cases in which we imposed lesser sanctions is that Stearman insulted this court, the Tax Court, and the opposing party. Even a pro se petitioner is required to be respectful in judicial proceedings. Thus, it is difficult to imagine a lesser sanction that would vindicate the integrity of the court proceedings and deter Stearman from similar misconduct.18 Wasteful and dilatory appeals unjustifiably consume the limited resources of the judicial system: "While judges, staff and support personnel have expended energy to dispose of this meritless appeal, justice has been delayed for truly deserving litigants." Foret v. S. Farm Bureau Life Ins. Co., 918 F.2d 534, 539 (5th Cir.1990).

Other circuits have also long recognized the waste of judicial resources occasioned by such groundless tax protester appeals:

The doors of this courthouse are of course open to good faith appeals. . . . But we can no longer tolerate abuse of the judicial review process by irresponsible taxpayers who press stale and frivolous arguments, without hope of success on the merits, in order to delay or harass the collection of public revenues or for other nonworthy purposes.

Granzow v. Comm'r, 739 F.2d 265, 270 (7th Cir.1984). The court in Granzow also warned that it will not hesitate to impose even greater sanctions for frivolous tax protester appeals under appropriate circumstances. Id.

We therefore AFFIRM the decision of the Tax Court, including the $25,000 in sanctions, and impose $12,000 in sanctions on Stearman for pursuing a frivolous appeal.