On November 21, 1996, the Court's notice setting case for trial at the Court's April 28, 1997, Tampa, Florida, trial session and standing pretrial order were served on petitioner. Respondent timely submitted a trial memorandum. Respondent's trial memorandum asserts, notwithstanding petitioner's failure to file a tax return for 1992, that she filed returns for 1989 through 1991, reporting wage income of the same order of magnitude for each of those years as the total wage income reported by petitioner's payers for 1992. Neither respondent's trial memorandum nor any other document filed or served on petitioner by respondent in this case contains any reference to the insufficiency of petitioner's petition under Rule 34(b) (which sets forth the required contents of a petition), the lack of merit of her legal position, the failure to allege any facts, 1997 Tax Ct. Memo LEXIS 452">*456 or the possibility of a penalty under section 6673(a).

Petitioner and respondent appeared at the calendar call and filed a stipulation of facts. At the calendar call, petitioner lodged and served on respondent a "Memorandum of Law in Support of Petition". At the hearing, respondent's counsel indicated, in response to the Court's questions, that respondent would allow a loss with respect to Lind-Waldock & Co. if petitioner would otherwise concede the case. Petitioner rejected respondent's offer; she replied: "I would truly like to stand on the memorandum of law that I submitted to the Court and would not be willing to make that agreement, your Honor." The Court thereupon caused petitioner's memorandum to be filed as petitioner's motion for summary judgment, and respondent countered with an oral motion for summary judgment. The Court informed the parties that respondent need not file any papers in support of respondent's cross-motion and that it was taking the matter under advisement.

Discussion

Although we have inherent power to dismiss a party's case for failure to state a claim, see Rule 123(b); May v. Commissioner, 752 F.2d 1301">752 F.2d 1301, 752 F.2d 1301">1303-1304 (8th Cir. 1985)1997 Tax Ct. Memo LEXIS 452">*457 (tax protester arguments, including denial that wages are income; dismissal for failure to state a claim), we believe it is preferable, in the circumstances of this case, briefly to address the issue raised by the parties' cross-motions for summary judgment.

Petitioner's "Memorandum of Law", which the Court filed as her motion for summary judgment, looks like a canned brief. It rehashes discredited arguments that the income tax is an indirect tax or excise tax that cannot be laid upon property, that not only an individual's labor, but also the income therefrom, is his or her property, that an excise tax is a privilege tax that it is unlawful to impose upon the individual's inalienable right to exist, which includes his labor, and that the holdings of the Supreme Court in Stanton v. Baltic Mining Co., 240 U.S. 103">240 U.S. 103 (1916), and Brushaber v. Union Pac. R.R., 240 U.S. 1">240 U.S. 1 (1916), as interpreted and applied in United States v. Gaumer, 972 F.2d 723">972 F.2d 723, 972 F.2d 723">724-725 (6th Cir. 1992), support her position. ²

1997 Tax Ct. Memo LEXIS 452">*458 Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Florida Peach Corp. v. Commissioner, 90 T.C. 678">90 T.C. 678, 90 T.C. 678">681 (1988). Summary judgment may be granted with respect to all or any part of the legal issues in controversy "if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law." Rule 121(b); Anderson v. Liberty Lobby, Inc., 477 U.S. 242">477 U.S. 242, 477 U.S. 242">247 (1986); Sundstrand Corp. v. Commissioner, 98 T.C. 518">98 T.C. 518, 98 T.C. 518">520 (1992), affd. 17 F.3d 965">17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753">90 T.C. 753, 90 T.C. 753">754 (1988); Naftel v. Commissioner, 85 T.C. 527">85 T.C. 527, 85 T.C. 527">529 (1985).

Because the issue is purely legal, this case is ripe for summary judgment. Timeworn discredited arguments that wages are not taxable income suffice, as an alternative to dismissal, to justify summary judgment for respondent. Coleman v. Commissioner, 791 F.2d 68">791 F.2d 68 (7th Cir. 1986)1997 Tax Ct. Memo LEXIS 452">*459 (wages not income); Beard v. Commissioner, 82 T.C. 766">82 T.C. 766, 82 T.C. 766">772-774 (1984) (wages not income), affd. per curiam 793 F.2d 139">793 F.2d 139 (6th Cir. 1986); Cornell v. Commissioner, T.C. Memo. 1983-370 (wages not income), see also Crain v. Commissioner, 737 F.2d 1417">737 F.2d 1417 (5th Cir. 1984). There is no need for us to spend any time on the arguments in petitioner's "Memorandum of Law". Petitioner should read the foregoing cases, if she has not already done so. We therefore grant respondent's motion for summary judgment, sustaining all of respondent's determinations, and deny petitioner's motion.

We now raise sua sponte whether we should impose a penalty under section 6673(a) against petitioner on the ground that petitioner instituted or maintained the proceeding primarily for delay or that petitioner's position in this proceeding is frivolous or groundless. Although petitioner's position clearly has neither legal merit nor factual support, we have no basis in this record for assessing petitioner's motives in instituting and maintaining the proceeding. There is no evidence in the Court's records1997 Tax Ct. Memo LEXIS 452">*460 that petitioner has previously been a litigant in this Court. Nor is there any evidence in the record of this case that petitioner had received any prior warnings in this proceeding, as would have occurred if respondent had filed a motion to dismiss the petition on the grounds that it failed to state a claim on the basis of which relief could be granted. ³ In the absence of a basis in this record for assessing petitioner's motives, see 752 F.2d 1301">May v. Commissioner, supra at 1306-1308, we shall not impose a penalty under section 6673(a).

1997 Tax Ct. Memo LEXIS 452">*461 Petitioner's unwillingness to dispose of this case by agreement creates the impression that petitioner may wish to file an appeal. We conclude by informing petitioner, as we have informed other taxpayers advancing arguments having no legal merit or factual support, see, e.g., Abrams v. Commissioner, 82 T.C. 403">82 T.C. 403, 82 T.C. 403">410-412 (1984); Talmage v. Commissioner, T.C. Memo. 1996-114, affd. without published opinion 101 F.3d 695">101 F.3d 695 (4th Cir. 1996); DiCarlo v. Commissioner, T.C. Memo. 1992-280, that the Courts of Appeals have their own sanctioning powers to deal with frivolous appeals. Sec. 7482(c)(4); 28 U.S.C. sec. 1912 (1994); Fed. R. App. P. 38. The Court of Appeals for the Eleventh Circuit, to which an appeal in this case would lie, has not hesitated in appropriate cases to use its power to order sanctions under these provisions. See, e.g., Pollard v. Commissioner, 816 F.2d 603">816 F.2d 603, 816 F.2d 603">605 (11th Cir. 1987); McNair v. Eggers, 788 F.2d 1509">788 F.2d 1509, 788 F.2d 1509">1510 (11th Cir. 1986); Biermann v. Commissioner, 769 F.2d 707">769 F.2d 707 (11th Cir. 1985);1997 Tax Ct. Memo LEXIS 452">*462 see also 791 F.2d 68">Coleman v. Commissioner, supra at 72-73; Mathes v. Commissioner, 788 F.2d 33">788 F.2d 33, 788 F.2d 33">34-36 (D.C. Cir. 1986); Connor v. Commissioner, 770 F.2d 17">770 F.2d 17, 770 F.2d 17">20 (2d Cir. 1985).

To reflect the foregoing,

An appropriate order and decision will be entered for respondent.