                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                 FILED
                                                                    U.S. COURT OF APPEALS
                                            No. 11-11377              ELEVENTH CIRCUIT
                                        Non-Argument Calendar           JANUARY 17, 2012
                                      ________________________             JOHN LEY
                                                                            CLERK
                                           Agency No. 3474-09




PATRICIA A. BROOKSHIRE,

llllllllllllllllllllllllllllllllllllllll                                  Petitioner-Appellant,

                                                    versus

COMMISSIONER OF IRS,

llllllllllllllllllllllllllllllllllllllll                             Respondent-Appellee.

                                     ________________________

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

                                           (January 17, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:

         Patricia Brookshire, proceeding pro se, appeals the tax court’s denial of her
petition for redetermination of her tax deficiency. She argues that the tax court

judge was biased against her for proceeding pro se. For the reasons set forth

below, we affirm the tax court’s decision.

                                          I.

      Brookshire failed to file tax returns for tax years 2003 through 2006. After

the Commissioner issued notices of deficiency for 2004 and 2006, Brookshire

filed a petition with the tax court seeking a redetermination of the tax deficiencies.

In her petition, she referred to herself as “he.” Among other things, she argued

that she had no tax liability for 2004 or 2006 and that she had business expenses,

tax preparation expenses, and charitable donation deductions. She explained that

she could not substantiate the income alleged by the Commissioner, which might

have been that of illegal immigrants who stole her Social Security number.

      The parties submitted a stipulation of facts, to which they attached a number

of exhibits, including declarations setting forth Brookshire’s wage, non-employee,

and interest income in 2004 and 2006. They further stipulated that the 2004

income from U.S. Personnel and the 2006 income from Patrick Cornelius was

wage income. With the stipulation of facts, Brookshire submitted an affidavit, list

of expenses and deductions, and spreadsheets summarizing her asserted business

expenses.

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      At trial, Brookshire testified that she was a freelance graphic designer.

Cornelius was one of her clients, and the W-2 from U.S. Personnel reflected her

payment from Cornelius. In 2004 and 2006, she had compared her income with

her business expenses and determined “that it was essentially a wash.” She

questioned the Commissioner’s determination of liability because she could not

find any W-2’s or 1099’s for 2004 or 2006 in her records. Brookshire began

testifying regarding the deduction for home insurance that the Commissioner’s

appeals counsel had been willing to approve, and the Commissioner objected. The

court stated that what Brookshire and appeals counsel had discussed was not

admissible.

      Brookshire testified that she was a contract worker for U.S. Personnel,

although she received W-2 wages for that work. She was not sure how her

claimed business expenses were allocated between her wage and non-employee

income, but she believed that more of her expenses were for her freelance work

than for her W-2 work. As to her travel expenses, she had recorded her mileage in

a logbook and transferred the information to a spreadsheet. After the

Commissioner pointed out some discrepancies in her 2006 spreadsheet,

Brookshire testified that those entries were incorrect. She did not have the

original mileage log with her at the trial. Additionally, her 2006 mileage might

                                         3
not all have been attributable to non-employee income.

       As to charitable donations, Brookshire testified that she gave cash donations

to two churches, averaging a total of $50 per week, for a total of $2,600.00. She

asked the court to consider her affidavit setting forth that estimate. The court

replied that it could not accept Brookshire’s affidavit because it was inadmissible

hearsay. However, the court explained, Brookshire’s testimony substituted for the

affidavit.

       At the conclusion of her testimony, Brookshire objected to the declarations

attached to the stipulation of facts because she could not cross-examine the

individuals who submitted them.

       The court acknowledged that Brookshire had listened to the court

proceedings, but found that her problems began with her petition. The court stated

that her petition included boilerplate language, frivolous arguments, and referred

to Brookshire as a “he” rather than a “she.” Brookshire had testified that her

claimed mileage was inaccurate. The court noted that Brookshire had conducted

research, but she was at a disadvantage as a pro se litigant. The court stated that it

would allow the Commissioner and Brookshire to submit briefs before issuing a

ruling.

       The court issued a memorandum incorporating the stipulated facts and

                                          4
setting forth additional factual findings and an opinion. The court described

Brookshire’s claims in her petition as “a hodgepodge of frivolous, irrelevant, and

spurious arguments common to petitioners following a program of tax defiance.”

The court cited three other tax court cases: Jensen v. Comm’r, T.C.M. (RIA)

2010-143, Sullivan v. Comm’r, 99 T.C.M. (CCH) 1565 (2010), and Cook v.

Comm’r, 99 T.C.M. (CCH) 1562 (2010). Specifically, as the taxpayers in those

three cases had contended, Brookshire denied tax liability, alleged that the

Commissioner’s income figures came from illegal immigrants who stole her Social

Security number, asserted that tax regulations were too complex, claimed credit

for the illegal telephone excise tax, claimed a deduction for tax preparation and

filing advice expenses even though she had not filed tax returns, asserted that she

should be allowed to reconstruct records, and referred to herself as “he.”

      The court explained that the exhibits to which Brookshire objected were

admissible under Fed.R.Evid. 803(6), 902(11). The court found that Brookshire

had not properly substantiated many of the deductions she attempted to claim,

such as her 2006 mileage, which she admitted was incorrect. There was no

evidence verifying Brookshire’s claimed charitable contributions. The court

further found that Brookshire had attempted to re-characterize her wage income as

non-employee income in order to claim additional expenses as business expenses.

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Brookshire also had not cooperated with the Commissioner, had not properly

complied with rules regarding turning over documents, had obstructed the process

by pursuing frivolous arguments, and had not sought competent tax advice. The

court did not believe that Brookshire misunderstood the law or believed that she

had no taxable income. Accordingly, the court sustained the Commissioner’s

determination of tax deficiencies and penalties.

      In a motion for reconsideration, Brookshire argued that the court showed a

bias against pro se litigants. The motion was denied. The tax court issued its

decision, and Brookshire timely appealed.

                                         II.

      We review the tax court’s factual findings for clear error and its legal

conclusions de novo. Estate of Whitt v. Comm’r, 751 F.2d 1548, 1556 (11th Cir.

1985). A judge’s failure to recuse herself is reviewed for an abuse of discretion.

Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).

      A judge must recuse herself when her “impartiality might reasonably be

questioned” or when she “has a personal bias or prejudice” against a party. 28

U.S.C. § 455(a), (b)(1). Thus, a judge should recuse herself if “an objective,

disinterested, lay observer fully informed of the facts underlying the grounds on

which recusal was sought would entertain a significant doubt about the judge’s

                                         6
impartiality.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (quotation

omitted). The bias must be personal, rather than judicial, to require recusal. Id.

That is, the bias “must stem from an extrajudicial source and result in an opinion

on the merits on some basis other than what the judge learned from [her]

participation in the case.” Jaffe v. Grant, 793 F.2d 1182, 1188-89 (11th Cir. 1986)

(quotations omitted). A judge’s remarks may show “such pervasive bias and

prejudice that it constitutes bias against a party,” but a “judge’s comments on lack

of evidence” and adverse rulings do not “constitute pervasive bias.” Hamm v.

Members of the Bd. of Regents of the State of Fla., 708 F.2d 647, 651 (11th Cir.

1983). A judge’s “expressions of impatience, dissatisfaction, annoyance, and even

anger, that are within the bounds of what imperfect men and women, even after

having been confirmed as federal judges, sometimes display,” do not show that the

judge was biased. Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147,

1157, 127 L.Ed.2d 474 (1994).

      In Jensen, Sullivan, and Cook, the tax court found that the taxpayers

presented frivolous and irrelevant claims common to tax defiance programs.

Jensen, T.C.M. (RIA) 2010-143; Sullivan, 99 T.C.M. (CCH) 1565; Cook, 99

T.C.M. (CCH) 1562. Similar to the arguments Brookshire presented, each of

those taxpayers cited Cohen and argued that the Commissioner’s determination of

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income might have been derived from illegal immigrants who stole his identity,

tax regulations were complex, he was entitled to a deduction for the illegal

telephone excise tax, he was entitled to deduct expenses for tax preparation and

advice even though he filed no tax return, and he was missing records. Jensen,

T.C.M. (RIA) 2010-143; Sullivan, 99 T.C.M. (CCH) 1565; Cook, 99 T.C.M.

(CCH) 1562.

       Brookshire’s arguments regarding bias are meritless.1 Although she does at

one point allege that the judge had a “personal bias” against her, all of her claims

revolve around the judge’s statements at trial and in the opinion. The judge’s

comments, however, do not reflect a pervasive bias. See Hamm, 708 F.2d at 651.

The judge did not reveal any bias towards pro se litigants by citing cases in which

the taxpayers had raised the same frivolous arguments that Brookshire raised. Nor

did the judge reflect any bias by pointing out that Brookshire’s petition contained

an incorrect pronoun or by finding Brookshire’s arguments frivolous. These

findings reflect the judge’s opinion on the merits of the case, not any personal or

       1
          Two additional matters warrant a brief discussion. First, although Brookshire seems to
challenge the tax court’s findings on the merits in her reply brief, she abandoned that issue by
failing to raise it in her initial brief. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(explaining that pro se briefs are construed liberally, but pro se litigants nonetheless abandon
issues raised for the first time in a reply brief). Second, we decline to consider the documents
that Brookshire attached to her initial brief because they were not before the lower court. See
Hershey v. City of Clearwater, 834 F.2d 937, 941 n.6 (11th Cir. 1987) (explaining that we
generally do not consider documents not before the lower court).

                                                 8
pervasive bias against Brookshire specifically or pro se litigants generally. See id.

Moreover, the judge did not err in noting that her arguments were frivolous. See

Estate of Whitt, 751 F.2d at 1556. For example, Brookshire’s inability to verify

her income was caused by her own failure to keep records. It was unreasonable

for her to assume and argue that because she failed to keep adequate records,

illegal immigrants might have stolen her identity.

      Next, Brookshire argues that the judge showed bias through erroneous

factual findings and a finding that Brookshire was not fully credible. However,

even if these findings contained errors, such errors do not reveal any bias on the

part of the judge. These findings were based on the facts of the case, not based on

an extrajudicial source or any personal or pervasive bias on the part of the judge.

See Jaffe, 793 F.2d at 1188-89; Hamm, 708 F.2d at 651.

      Brookshire also asserts that the judge showed bias by failing to accept

Brookshire’s testimony regarding charitable donations as true after telling

Brookshire that she would do so, finding that Brookshire attempted to

re-characterize her income from Cornelius as non-employee income, and failing to

rule on all objections raised at trial. These assertions are belied by the record,

which shows that: (1) the judge merely stated that Brookshire’s testimony as to

charitable donations was admissible, but her affidavit was not; (2) Brookshire did

                                           9
attempt to re-characterize her income from Cornelius as non-employee income

despite stipulating that it was wage income; (3) the judge explicitly stated that

Brookshire’s conversations with appeals counsel were not admissible; and (4) the

judge explicitly found that the declarations to which Brookshire objected were

admissible under Fed.R.Evid. 803(6), 902(11).

        Finally, Brookshire argues that the judge attempted to prevent her from

seeking review of her case by using an intimidating tone at trial and in the opinion.

The record reveals no such tone and instead shows that the judge allowed

Brookshire to testify and be cross-examined, allowed her to file a post-trial brief,

and answered her questions regarding the admission of business records. The

judge also acknowledged that Brookshire had listened to the court proceedings.

Moreover, given that Brookshire proceeded to trial, filed a motion for

reconsideration, and filed the instant appeal, it does not appear that she was

actually intimidated by the judge’s alleged tone. Based on the above, the judge

did not abuse her discretion because she showed no bias. See Murray, 253 F.3d at

1310.

        For the foregoing reasons, we affirm the tax court’s decision.

        AFFIRMED.




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