Filed: Jun. 28, 2012
Latest Update: Feb. 12, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 28, 2012 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court JERRY LEE VANDAGRIFF, Petitioner-Appellant, No. 12-9001 v. (ON APPEAL FROM UNITED STATES TAX COURT) COMMISSIONER OF INTERNAL (CIR No. 18647-11) REVENUE, Respondent-Appellee. ORDER AND JUDGMENT * Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. ** Jerry Lee Vandagriff appeals an order of the Tax Court dismissing his challenge to the Commissioner’s
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 28, 2012 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court JERRY LEE VANDAGRIFF, Petitioner-Appellant, No. 12-9001 v. (ON APPEAL FROM UNITED STATES TAX COURT) COMMISSIONER OF INTERNAL (CIR No. 18647-11) REVENUE, Respondent-Appellee. ORDER AND JUDGMENT * Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. ** Jerry Lee Vandagriff appeals an order of the Tax Court dismissing his challenge to the Commissioner’s ..
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 28, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JERRY LEE VANDAGRIFF,
Petitioner-Appellant, No. 12-9001
v. (ON APPEAL FROM
UNITED STATES TAX COURT)
COMMISSIONER OF INTERNAL (CIR No. 18647-11)
REVENUE,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Jerry Lee Vandagriff appeals an order of the Tax Court dismissing his
challenge to the Commissioner’s deficiency determination. The Tax Court found
he failed to state a claim upon which relief could be granted and that his
complaint was otherwise incomprehensible or legally frivolous.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Exercising jurisdiction pursuant to I.R.C. § 7482(a)(1), and for
substantially the same reasons as the Tax Court, we AFFIRM the Tax Court’s
order of dismissal and decision.
In July 2011, the Commissioner issued a notice of deficiency to Vandagriff
after he failed to file a tax return for 2008. The Commissioner determined that
Vandagriff failed to report non-employee compensation of $100,343.00 and
capital gains of $35,000.00, and that he was liable for an income tax deficiency of
$41,561.00, along with additional payments of $9,351.23 under I.R.C.
§ 6651(a)(1), $5,195.13 under § 6651(a)(2), and $1,335.60 under § 6654.
Vandagriff filed a timely petition challenging the deficiency and additions.
On November 21, 2011, the Tax Court entered an order of dismissal and
decision, dismissing for failure to state a claim upon which relief could be
granted. The Tax Court concluded that Vandagriff’s petition contained “neither
assignment of error nor allegation of fact in support of any justiciable claim,” but
only “frivolous and groundless arguments.” R., Doc. 9 at 2. The Tax Court also
upheld the deficiency determination and denied the Commissioner’s request for a
penalty under I.R.C. § 6673. 1 Vandagriff then filed a timely motion to vacate,
which the Tax Court denied on January 10, 2012.
Before reaching the merits of the appeal, we must consider our jurisdiction.
We directed the parties to submit briefing on the issue of whether we have
1
The Commissioner does not appeal the Tax Court’s denial of penalties.
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jurisdiction where the appellant filed his notice of appeal while his timely motion
to vacate was still pending before the Tax Court. At the time of this request, it
was unclear whether the motion to vacate had been ruled upon.
This court’s jurisdiction to review decisions of the Tax Court rests upon
I.R.C. § 7482, which provides that “[r]eview of a decision of the Tax Court shall
be obtained by filing a notice of appeal with the clerk of the Tax Court within 90
days after the decision of the Tax Court is entered.” But if a motion to revise or
vacate the decision is filed, within the 30-day time limit, the filing tolls the
appeal period until “the entry of the order disposing of the motion or from the
entry of a new decision, whichever is later.” Fed. R. Civ. P. 13(a)(2). This is
relevant because “[a] court of appeals acquires jurisdiction of an appeal only upon
the filing of a timely notice of appeal and this requirement is mandatory and
jurisdictional.” Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir. 1974).
The Tax Court issued its order of decision and dismissal on November 21,
2011. On December 21, 2011, Vandagriff filed a motion to vacate the order of
dismissal and decision. The Commissioner filed a response to the motion on
January 10, 2012. After a review of the record, it is clear that the Tax Court
denied Vandagriff’s motion to vacate on the same day, January 10, 2012, even
though there was not a separate docket entry for the dismissal. See R., Doc. 10 at
1. Vandagriff’s notice of appeal was filed on January 25, 2012, several weeks
after the disposition of the motion to vacate. Accordingly, the notice of appeal
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was filed within 90 days after the motion to vacate was denied and this court has
jurisdiction over the appeal.
As to the merits of Vandagriff’s claims, we review de novo the Tax Court’s
dismissal for failure to state a claim. Fox v. Commissioner, 969 F.2d 951, 952
(10th Cir. 1992).
When challenging a deficiency, Tax Court Rule 34(b)(4) requires “[c]lear
and concise assignments of each and every error which the [taxpayer] alleges to
have been committed by the Commissioners in the determination of the
deficiency.” Rule 34(b)(5) requires “[c]lear and concise lettered statements of the
facts on which [the taxpayer] bases the assignment of error.” Additionally, the
taxpayer may not rest solely on conclusory allegations of error, but must
affirmatively set forth in his petition specific facts indicating that specific errors
have occurred. InverWorld, Ltd. v. Commissioner, 979 F.2d 868, 876–77 (D.C.
Cir. 1992). If the taxpayer fails to satisfy the Tax Court’s pleading requirements,
the petition is subject to dismissal for failure to state a claim upon which relief
can be granted. Clark v. Commissioner,
744 F.2d 1447, 1447 (10th Cir. 1984).
In his arguments below, Vandagriff failed to dispute the Commissioner’s
substantive determinations that he received $100,342.00 in non-employee
compensation and $35,000.00 in capital gains during 2008, but did not file a tax
return, pay his tax liability, or pay sufficient estimated tax. Instead, Vandagriff
raised a variety of “tax-protester” arguments, challenging the Commissioner’s
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authority to collect income taxes from him at all, along with a number of
assertions that the tax laws are unenforceable due to invalid or nonexistent
regulations.
On appeal, Vandagriff raises the same arguments, challenging the
jurisdiction of the IRS and the underlying statutes which authorize tax collection.
Given the persuasive reasoning of the Tax Court’s order, R., Doc. 9 at 1–3, we
see no need to repeat its analysis dismissing these arguments. See also Crain v.
Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984) (finding there is “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”). 2
2
Even if we reach the merits of Vandagriff’s arguments, they are all easily
eliminated. We have previously held that:
[T]he following arguments . . . are completely lacking in legal merit
and patently frivolous: (1) individuals . . . are not “persons” subject
to taxation under the Internal Revenue code; . . . (7) no statutory
authority exists for imposing an income tax on individuals; (8) the
term “income” as used in the tax statutes is unconstitutionally vague
and indefinite; (9) individuals are not required to file tax returns
fully reporting their income;
To this short list of rejected tax protester arguments we now add as
equally meritless . . . (1) the Commissioner of Internal Revenue and
employees of the Internal Revenue Service have no power or
authority to administer the Internal Revenue laws, including power to
issue summons, liens and levies, because of invalid or nonexistent
delegations of authority, lack of publication of delegations of
authority in the Federal Register, violations of the Paperwork
Reduction Act, and violations of the Administrative Procedure Act,
including the Freedom of Information Act; and (2) tax forms,
(continued...)
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In sum, the Tax Court properly dismissed Vandagriff’s challenge to the
Commissioner’s deficiency.
AFFIRMED.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
2
(...continued)
including 1040, 1040A, 1040EZ and other reporting forms, are
invalid because they have not been published in the Federal Register.
Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).
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