       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 01-2534

                         STEVEN A. SWAN,

                      Plaintiff, Appellant,

                                v.

                         UNITED STATES,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. James R. Muirhead, U.S. Magistrate Judge]


                             Before

                       Boudin, Chief Judge,
                  Stahl, Senior Circuit Judge,
                   and Lynch, Circuit Judge.




     Steven A. Swan on brief pro se.
     Eileen J. O’Connor, Assistant Attorney General, David English
Carmack and Jeffrey R. Meyer, Attorneys, Tax Division, Department
of Justice and Thomas P. Colantuono, United States Attorney, on
brief for appellee.



                           May 7, 2002
             Per Curiam. After carefully reviewing the record and

briefs on appeal, we affirm the judgment for substantially the

reasons given below.

             The appellant’s primary argument on appeal is that

the court’s federal question jurisdiction covered his Sixteenth

Amendment     challenge      to     his       income   taxes.   A    frivolous

constitutional      issue    does       not    raise   a   federal   question,

however.     Hagans v. Lavine, 415 U.S. 528 (1974); Molina-Crespo

v. Califano, 583 F.2d 572 (1st Cir. 1978). The appellant argues

that the constitutional issue could not be frivolous because he
adduced credible evidence that Congress intended a narrower
income tax.        He misses the point.            The issue is frivolous
because it has already been decided, not because the evidence

is univocal.        The income tax has survived constitutional

challenge. See, e.g., Eisner v. Macomber, 252 U.S. 189 (1920);

Quijano v. United States, 93 F.3d 26 (1st Cir. 1996); United

States v. Turano, 802 F.2d 10 (1st Cir. 1986).
             The appellant’s remaining arguments merit little

discussion.    Given the resolution of the constitutional issue,

the appellant could not show that he was certain to prevail,

precluding equitable relief.              Bob Jones University v. Simon,

416   U.S.   725   (1974).        The     appellant    failed   to   establish
jurisdiction under I.R.C. § 7422(a) by showing that he paid the

taxes and filed claims for refunds.               McMillen v. United States

Department of Treasury, 960 F.2d 187 (1st Cir. 1991).



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         We hereby deny the appellant’s motion for return of

property and an investigation.

          Affirmed.   Loc. R. 27(c).




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