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NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions
or orders designated for publication are not precedential and should not be
cited except when relevant under the doctrines of law of the case, res judicata,
or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Jerry R. WHITE, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 18, 1990. [FN*]
Decided Dec. 20, 1990.
Appeal from the United States District Court for the District of
Nevada; Howard D. McKibben, District Judge, Presiding.
Before GOODWIN, Chief Judge, and SCHROEDER, and BRUNETTI, Circuit Judges.
Jerry R. White appeals pro se the district court's revocation of his probation.
The district court found that White had violated the special terms of his
probation which required him to timely file personal income tax returns
with the Internal Revenue Service (IRS), as required by law, and provide copies
to the Department of Probation. We have jurisdiction pursuant to 28 U.S.C.
s 1291 and affirm.
In 1987, White was convicted on five counts of Failure to File Tax Returns
in violation of 26 U.S.C. s 7203. On the first count, the district court
sentenced White to one year in custody of the Attorney General. On counts
two through five, the court imposed a suspended sentence and placed White
on three years probation. In addition to the general terms of probation,
the court imposed the following special terms: (1) White was to cooperate
with the IRS regarding his tax liabilities; and (2) White was to timely
file personal income tax returns with the IRS, as required by law, and provide
copies to the Department of Probation. In 1989, a petition for probation
revocation was filed alleging that White had failed to comply with the
terms of his probation. After a probation revocation hearing, the district
court found that White had violated the terms and conditions of his probation
by failing to file a personal income tax return. The court revoked his
probation and sentenced White to one year in custody of the Attorney General
of the counts two through five. The sentences are to run concurrently with
each other and consecutively to the one- year sentence in the first count.
Standard of Review
We review the district court's revocation of probation for an abuse of discretion.
See United States v. Daly, 839 F.2d 598, 599-600 (9th Cir.1988).
White contends that there is no law requiring him, as "a sovereign citizen
of the state of Nevada," to file income tax returns, and therefore, the
district court "overstepped the bounds of Constitutionally granted authority" when
it ordered him, as a special condition of his probation, to file income tax
returns as required by law. This contention lacks merit.
The IRS is statutorily authorized to impose an income tax on United States
citizens who reside in the United States and whose income is derived from domestic
sources. See 26 U.S.C. s 1(c) (section 1(c) of the Code imposes an income tax
on unmarried individuals); Treas.Reg. s 1.1-1 ("[s]ection 1 of the Code
imposes an income tax on the income of every individual who is a citizen or
resident of the United States") (emphasis added); Treas.Reg. s 1.6012-
1(a)(1)(i) ("an income tax return must be filed by every individual [with
gross income above a certain minimum level who is a] citizen of the United
States whether residing at home or abroad"); United States v. Nelson (In
re Becraft), 885 F.2d 547, 548 (9th Cir.1989) ("the Supreme Court and
the lower federal courts have both implicitly and explicitly recognized the
Sixteenth Amendment's authorization of ... [an] income tax on United States
citizens residing in the United States and thus the validity of the federal
income tax laws as applied to such citizens" (emphasis added, citations
omitted) ); see also Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir.1988)
(federal income tax system is not a voluntary system). Thus, White's contention
that there is no law which requires him to file a federal income tax return
is wholly without merit. Accordingly, the district court did not overstep its
authority by requiring White to file income tax returns as a condition
of his probation.
In his reply brief, White asserts for the first time that the Office of Management
and Budget (OMB) control number on the Form 1040 is improper, and therefore,
he cannot be required to submit a Form 1040 or penalized for failure to do
so. Because White did not raise this issue in his opening brief, we need not
consider the issue. See Ellingson v. Burlington Northern, Inc., 653 F.2d 1327,
1332 (9th Cir.1981). [FN1] AFFIRMED.
FN* The panel unanimously finds this case suitable for disposition without
oral argument. Fed.R.App.P. 34(a); 9th Cir. R. 34-4.
FN** This disposition is not appropriate for publication and may not be cited
to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
FN1. Even if we were to consider the issue, it is without merit. White argues
that the Form 1040 OMB number (1545-0074) does not correspond with the OMB
number for Treas.Reg. s 1.1-1 (imposing an income tax on United States citizens).
The OMB number 1545-0074, however, does correspond to Treas.Reg. s 1.6012-1(a)(1)(i),
which requires taxpayers to submit the Form 1040. Thus, the OMB number on the
Form 1040 is correct, and White is required to submit the form.
to Tax Protestor Exhibit