Two 5th Circuit Cases Declined By the Supremes

[The Observer]

LOUTO J BRAQUET, JR,
Petitioner-Appellant
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee

Release Date: JUNE 24, 2009


IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Summary Calendar

Appeal from the United States Tax Court
No. 13071-08

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:/*/

Appellant Louto J. Braquet, Jr. purports to raise twenty-four issues for our review, including challenges to nine Tax Court rules, the authority of the Tax Court's chief judge to appoint special trial judges under 26 U.S.C. section 7443A, the resulting authority of the special trial judge, various clerical and administrative actions regarding his petition in Tax Court, and, finally, the Tax Court's dismissal of his petition disputing the Commissioner's notice of deficiency.

Braquet's numerous objections to Tax Court procedures are frivolous, and provide no basis for relief. His challenge to the notice of deficiency, dismissed by the Tax Court, is premised upon long-discredited theories of law and "'shopworn arguments characteristic of tax-protestor rhetoric that [have] been universally rejected by this and other courts.'" Stearman v. Comm'r, 436 F.3d 533, 537 (5th Cir. 2006) (citation omitted). "We 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, 1417 (5th Cir. 1984). They manifestly do not. Accordingly, we affirm the Tax Court's order dismissing Braquet's petition.

We also deny Braquet's "Motion to Strike 28 U.S.C. sections 711 and 956, FED. R. APP. P. 27(b), and 5th CIR. R. 27," which attempts to challenge this Court's administrative handling of his appeal. Braquet alleges no prejudice from the orders issued in this case, and raises no basis for relief, so his motion is denied.

Finally, we consider the Commissioner's motion for sanctions pursuant to 28 U.S.C. section 1912 and Rule 38 of the Federal Rules of Appellate Procedure. In his appeal and subsequent motion to strike, Braquet concedes that his theory of income tax avoidance has been repeatedly and completely rejected by this Court. See, e.g., Stearman, 436 F.3d at 537-38; Tello v. Comm'r, 410 F.3d 743, 744 (5th Cir. 2005). His remaining arguments, laced with invective directed at appellees, the Tax Court, and this Court, reflect a general contempt and defiance of the Court's authority and include a number of baseless accusations of criminal conduct. To countenance this abusive conduct and frivolous legal posture would be to invite Braquet and future litigants to repeat it. We have observed that "[w]asteful 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.'" Stearman, 436 F.3d at 540 (quoting Foret v. S. Farm Bureau Life Ins. Co., 918 F.2d 534, 539 (5th Cir. 1990)). We agree with the Commissioner that a lump-sum sanction of $ 8,000, in lieu of calculating the costs and attorney's fees it incurred in responding to Braquet's appeal, is appropriate.

We AFFIRM the Tax Court's order dismissing Braquet's petition, DENY his motion to strike, and GRANT the Commissioner's motion for sanctions in the amount of $ 8,000 for persisting in this frivolous appeal.

FOOTNOTE

/*/ Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.



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ROBERT W. DOUGLAS
Plaintiff-Appellant
v.
UNITED STATES
Defendant-Appellee

Release Date: APRIL 15, 2009



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Summary Calendar

Appeal from the United States District Court
for the Western District of Texas
USDC 5:07-CV-593

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:/*/

Appellant Robert W. Douglas failed to pay the income taxes he owed for multiple years, including at least 1998 and 2000-2003. Between 2000 and 2003 the IRS assessed tax liabilities against Douglas based on returns prepared under I.R.C. section 6020(b) which authorizes the IRS to create returns for taxpayers who fail to file or file fraudulent returns. In May 2006, the IRS mailed Douglas a notice of intent to levy with respect to his 1998 and 2000-2003 taxable years. Douglas requested a collection-due-process hearing under I.R.C. section 6330 to contest the levies, but the IRS Appeals Office concluded that the assessments were properly made. The IRS issued notices of levy in May 2007 to two banks, reflecting a total amount due of $ 168,139.99; the IRS was able to collect $ 764.34 from Frost National Bank and $ 69.93 from Wachovia Bank. These levys satisfied the 1998 deficiencies. As of shortly thereafter, Douglas had unpaid federal income tax liabilities of $ 94,554.90 for 2000, $ 11,216.41 for 2001, $ 10,937.18 for 2002, and $ 12,764.23 for 2003.

Douglas filed a complaint in the district court on July 13, 2007, seeking damages for alleged unauthorized collection actions in connection with the levys on his bank account, refunds of federal income tax, and injunctive relief. The district court granted summary judgment to the IRS. We now affirm.

We review a grant of summary judgment de novo. Texas Industries, Inc. v. Factory Mutual Ins. Co., 486 F.3d 844, 846 (5th Cir. 2007). Douglas argues first that the levys required his authorization or a court order. But when a taxpayer fails to pay assessed taxes, the amount he owes, plus any interest and penalties, becomes a lien in favor of the United States automatically. I.R.C. sections 6321, 6322. The Supreme Court has held that the administrative collection scheme by means of levy is Constitutional. See, e.g., United States v. Nat'l Bank of Commerce, 472 U.S. 713, 721 (1985). Further, Douglas is mistaken in arguing that there have been no implementing regulations passed that would empower the government to make assessments or collections under the Internal Revenue Code. In fact "[n]umerous regulations have been promulgated concerning [the IRS's] assessment and collection authority." Stafford v. Commissioner, 73 T.C.M. (CCH) 1848, 1851-52 (1997). Further, courts have consistently held that provisions of the Code do not have to be implemented by regulation in order to be effective. See, e.g., United States v. Hicks, 947 F.2d 1356, 1360 (9th Cir. 1991).

Douglas also appears to demand a refund. A taxpayer must timely file an administrative claim with the IRS before seeking a refund in court. PALA, Inc. Employees Profit Sharing Plan & Trust Agreement v. United States, 234 F.3d 873, 877 (5th Cir. 2000). A taxpayer seeking a refund must also prove that he has paid the IRS-assessed liability in full before filing suit. Flora v. United States, 362 U.S. 147, 177 (1960). Douglas has failed to do either. His argument that the IRS committed "fraud" by filling out returns on his behalf as authorized by I.R.C. section 6020(b) is frivolous. Douglas is thus not entitled to a refund for any payments made or amounts levied by the IRS.

Douglas finally argues that the district court erred in denying his motion for summary judgment because he is a "non-taxpayer." According to Douglas, he was born and domiciled in the State of Texas and has refused to "volunteer" to pay income tax, and no federal statute requires him to pay taxes because he is not an employee of the federal government. Douglas unsurprisingly cites no law in support of these claims. As discussed above, the IRS acted properly in levying his funds and Douglas is not entitled to a refund. The judgment of the district court is AFFIRMED.

FOOTNOTE

/*/ Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.