           Case: 12-14119    Date Filed: 06/11/2013   Page: 1 of 5


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14119
                        Non-Argument Calendar
                      ________________________

                            Agency No. 25048-11



ROBERT W. HERRIMAN,

                                                            Petitioner-Appellant,

                                   versus

COMMISSIONER OF IRS,

                                                          Respondent-Appellee.

                      ________________________

                 Petition for Review of a Decision of the
                              U.S.Tax Court
                       ________________________

                              (June 11, 2013)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-14119     Date Filed: 06/11/2013   Page: 2 of 5


      Robert Herriman, proceeding pro se, appeals the tax court’s dismissal of his

petition for redetermination of his tax deficiency. On appeal, he argues that his

income was not subject to federal taxation. The Commissioner has also moved for

sanctions, pursuant to Federal Rule of Appellate Procedure Rule 38, in the amount

of $8,000.

                                         I.

      We review the tax court’s grant of a motion to dismiss de novo. Pollard v.

Comm’r, 816 F.2d 603, 604 (11th Cir. 1987). The taxpayer bears the burden of

showing that the Commissioner’s determination of a deficiency is erroneous. Id.

A taxpayer’s frivolous argument does not establish that the determination of

deficiency is erroneous and thus warrants a dismissal of the petition by the tax

court. Id.

      We have found “utterly without merit” the argument that the Internal

Revenue Code limits the meaning of “state” and “United States” to the District of

Columbia and the United States territories. United States v. Ward, 833 F.2d 1538,

1539 (11th Cir. 1987). Additionally, the Sixteenth Amendment provides that

“Congress shall have power to lay and collect taxes on incomes, from whatever

source derived, without apportionment among the several States.” U.S. Const.

amend. XVI. We have rejected as frivolous the argument “that withholding of tax

from wages is a direct tax on the source of income without apportionment in


                                          2
              Case: 12-14119     Date Filed: 06/11/2013    Page: 3 of 5


violation of the Sixteenth Amendment.” Motes v. United States, 785 F.2d 928, 928

(11th Cir. 1986).

      The tax court did not err in dismissing Herriman’s petition. We have

previously rejected as frivolous and without merit his arguments that the Internal

Revenue Code applies only to the District of Columbia and the United States

territories and that the withholding of taxes from wages is an unconstitutional

direct income tax without apportionment. See Ward, 833 F.2d at 1539; Motes, 785

F.2d at 928. Because Herriman’s arguments are frivolous, he did not establish that

the determination of his tax deficiency was erroneous, and the tax court correctly

dismissed his petition. See Pollard, 816 F.2d at 604. Accordingly, we affirm.

                                          II

      The Commissioner moves for sanctions to be imposed against Herriman for

maintaining a frivolous appeal, pursuant to Rule 38 of the Federal Rules of

Appellate Procedure and 28 U.S.C. § 1912. The Commissioner reports that the

average expense in attorney salaries and other costs incurred in the defense of

frivolous taxpayer appeals in which sanctions were awarded during 2009 and 2011

is greater than $12,500 and asks that this Court impose a sanction against Herriman

in the amount of $8,000.

      Pursuant to Rule 38, “[i]f a court of appeals determines the appeal is

frivolous, it may, after a separately filed motion or notice from the court and


                                          3
               Case: 12-14119     Date Filed: 06/11/2013    Page: 4 of 5


reasonable opportunity to respond, award just damages and single or double costs

to the appellee.” Fed. R. App. P. 38; see also 26 U.S.C. § 7482(c)(4) (“The United

States Court of Appeals and the Supreme Court shall have the power to require the

taxpayer to pay to the United States a penalty in any case where the decision of the

Tax Court is affirmed and it appears that the appeal was instituted or maintained

primarily for delay or that the taxpayer's position in the appeal is frivolous or

groundless.”); 28 U.S.C. § 1912 (“Where a judgment is affirmed by the Supreme

Court or a court of appeals, the court in its discretion may adjudge to the prevailing

party just damages for his delay, and single or double costs.”). In Pollard, for

example, we imposed a lump-sum sanction against the appellant because his

arguments had previously been rejected as frivolous by us and because he was

warned that his arguments were frivolous when he was sanctioned by the tax court.

816 F.2d at 605.

       Because we have previously rejected Herriman’s arguments as frivolous and

because Herriman was warned that his arguments were frivolous when he was

sanctioned by the tax court, Rule 38 sanctions against Herriman are appropriate.

We grant the Commissioner’s motion for a lump-sum sanction in the amount of

$8,000. See Ward, 833 F.2d at 1539; Pollard, 816 F.2d at 605; Motes, 785 F.2d at

928.

                                          III.


                                           4
             Case: 12-14119    Date Filed: 06/11/2013   Page: 5 of 5


      For the foregoing reasons, we affirm the dismissal of Herriman’s petition

and grant the Commissioner’s motion for sanctions.

      AFFIRMED; the Commissioner’s motion for sanctions in the lump-sum of

$8,000 is GRANTED.




                                        5
