                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT



                            No. 97-1415



In Re:   PETER KAY STERN,

                                                        Petitioner.




                 On Petition for Writ of Mandamus.


Submitted:   May 15, 1997                  Decided:   June 16, 1997


Before RUSSELL, HALL, and HAMILTON, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Peter Kay Stern, Petitioner Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Peter Stern petitions this court to enjoin the Internal

Revenue Service (IRS) from collecting unpaid taxes, penalties, and

interest from him. Additionally, he seeks compensatory damages for

the IRS's actions in attempting to collect the debt and for alleged

violations of the Freedom of Information Act (FOIA).1 Finding

Stern's allegations and arguments devoid of merit, we deny the

petition.

     Stern, who has not paid nor filed income tax returns since

1984, maintains that federal case law and other materials provide

that he is not required to file federal income tax returns. He

claims that from the Constitution, Supreme Court cases, and other

documents, he learned that the income tax was an excise tax for

which he as a citizen of the state of North Carolina could not be

held liable. Stern's position is absolutely devoid of merit.

     Congress has expressly removed or excluded jurisdiction of the

court in tax cases to grant injunctions or declaratory judgments to

prevent the assessment and collection of taxes.2 Moreover, the

United States Supreme Court has consistently interpreted the fed-

eral income tax for eighty years. Since 1916, the Court has con-

strued the tax as an indirect tax authorized under Article I,



     1
         5 U.S.C. § 552 (1994).
         2
        26 U.S.C. § 7421(a) (1994) (commonly called the "Anti-
Injunction Act").

                                  2
Section 8, Clause I of the U.S. Constitution, as amended by the

Sixteenth Amendment.3 Federal courts have all agreed that wages or

compensation for services constitute income and that individuals

receiving income are subject to the federal income tax—regardless

of its nature.4 In short, the debate over whether the income tax is

an excise tax or a direct tax is irrelevant to the obligation of

citizens to pay taxes and file returns.5

     Furthermore, the duty to file returns and pay income taxes is

clear. Section 1 of the Internal Revenue Code imposes a federal tax

on the taxable income of every individual.6 Section 63 defines

"taxable income" as gross income minus allowable deductions.7

Section 61 states that "gross income means all income from whatever

source derived," including compensation for services.8 Sections

6001 and 6011 provide that a person must keep records and file a

tax return for any tax for which he is liable.9 Finally, § 6012

         3
                 See Brushaber v. Union Pac. R.R., 240 U.S. 1, 11, 16-19
(1916).
             4
        See, e.g., Brushaber, 240 U.S. at 17; United States v.
Sloan, 939 F.2d 499, 500-01 (7th Cir. 1991); Simmons v. United
States, 308 F.2d 160, 167-68 (4th Cir. 1962).
         5
        Simmons, 308 F.2d at 166 n.21 (stating that "it has been
clearly established that the labels used do not determine the
extent of the taxing power").
     6
             26 U.S.C. § 1 (1994).
     7
             26 U.S.C. § 63 (1994).
     8
             26 U.S.C. § 61 (1994).
     9
             26 U.S.C. §§ 6001, 6011 (1994).

                                        3
provides that every individual having gross income that equals or

exceeds the exemption amount in a taxable year shall file an income

tax return.10 The duty to pay federal income taxes therefore is

"manifest on the face of the statutes, without any resort to IRS

rules, forms or regulations."11

     Finally, it is clear from the evidence that Stern submitted,

that the IRS complied with the FOIA. All the identifiable documents

within the IRS's control were either produced or subject to with-

holding under an exemption.12 The FOIA only requires that an agency

release existing documents, not that it create new ones.13

     Accordingly, we deny Stern's petition for relief. Additional-

ly, we deny Stern's request for subpoena duces tecum. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.




                                                     PETITION DENIED




     10
          26 U.S.C. § 6012 (1994).
    11
          United States v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990).
    12
       Goldgar v. Office of Admin., Executive Office of the Presi-
dent, 26 F.3d 32, 34 (5th Cir. 1994).
     13
        Rushforth v. Council of Economic Advisors, 762 F.2d 1038,
1039 n.3 (D.C. Cir. 1985).

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