                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-15824                ELEVENTH CIRCUIT
                                                              JULY 7, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                  D. C. Docket No. 06-00479-CV-ORL-JGG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JAMES A. SPITZER,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                (July 7, 2009)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

    On February 15, 2007, the district court entered summary judgment against
James Spitzer on the Government’s claim to recover an erroneous income tax

refund of $16,614 plus interest. Spitzer appealed the judgment, and we affirmed.

United States v. Spitzer, 245 Fed.Appx. 908, 2007 WL 2376783 (C.A. 11. Fla.) We

also granted the Government’s motion for sanctions under Federal Rule of

Appellate Procedure 38, id. at 912, in the sum of $16,681.66, as attorney’s fees.1

      On July 31, 2008, Spitzer moved the district court to vacate the court’s

judgement (which we had affirmed on appeal) as void, pursuant to Federal Rule of

Civil Procedure 60(b)(4). The court summarily denied the motion. Spitzer now

appeals that ruling.

      In his brief on appeal, Spitzer argues that the district court denied him due

process of law in granting summary judgment for the Government by

(1) disregarding his challenge under Article I, § 9 of the Constitution to the validity

of the tax assessment; (2) allowing the proceeding to take place even though the

court lacked subject matter jurisdiction due to the Government’s lack of standing;

and (3) misapplying 26 U.S.C. §§ 3401 and 3121 as direct taxes on his earnings, in

violation of (a) Article I, § 9’s prohibition against direct taxation without

apportionment according to representation and (b) the holding in Brushaber v.



       1
          On March 20, 2009, we directed the parties to inform this court whether Spitzer had
paid the fees as ordered. Spitzer did not respond. The Government responded by letter dated
March 25, 2009, stating that no portion of the sanction had been paid.

                                               2
Union Pac. R. Co., 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493 (1916), that the Sixteenth

Amendment does not treat a tax on income as a direct tax.

      As noted above, the district court denied Spitzer’s motion without

explication. In that we may affirm a district court’s judgment on any ground,

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1433 n.9 (11 th Cir. 1998), we

do so here, invoking the doctrine of res judicata. “Res judicata bars the filing of

claims which were raised or could have been raised in an earlier proceeding.”

Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). A claim is

barred by the doctrine of res judicata if all four of the following elements are

present: “(1) there is a final judgment on the merits; (2) the decision was rendered

by a court of competent jurisdiction; (3) the parties, or those in privity with them,

are identical in both suits; and (4) the same cause of action is involved in both

cases.” Id. “[I]f a case arises out of the same nucleus of operative fact, or is based

upon the same factual predicate, as a former action, that the two cases are really the

same ‘claim’ or ‘cause of action’ for purposes of res judicata.” See id. at 1239.

      All four requirements for res judicata were met here. Spitzer’s Rule 60(b)(4)

motion was nothing more than an attempt to attack the judgment we affirmed in

United States v. Spitzer.

      AFFIRMED.



                                           3
