                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 05 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVID K. WINTERROTH,                             No. 11-72377

               Petitioner - Appellant,           Tax Ct. No. 4804-09L

  v.
                                                 MEMORANDUM *
COMMISSIONER OF INTERNAL
REVENUE,

               Respondent - Appellee.



                            Appeal from a Decision of the
                              United States Tax Court

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       David K. Winterroth appeals pro se from the tax court’s summary judgment

in favor of the Commissioner of Internal Revenue (“Commissioner”) in

Winterroth’s action challenging a federal tax lien to collect penalties assessed




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
against him for filing a frivolous federal income tax return. We have jurisdiction

under 26 U.S.C. § 7482(a). We review de novo the Tax Court’s grant of summary

judgment. Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir. 2002). We affirm.

      The Tax Court properly concluded that, in light of Winterroth’s 2006 return

reporting zero income, zero tax due, and requesting a refund for the amount

withheld by his employer despite having earned wages, the penalty issued against

Winterroth was appropriate. See 26 U.S.C. § 6702(a) (civil penalty of $5,000 for

filing a frivolous tax return); Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.

1985) (per curiam) (a form 1040 filed to obtain a tax refund is a tax return).

      The Tax Court properly granted summary judgment because the record

supports the Commissioner’s determination that the collection of the penalty

should proceed, and Winterroth failed to raise a genuine dispute of material fact.

See Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (memorandum).

      Winterroth’s contention that he was denied due process due to bias by both

the Internal Revenue Service and the Tax Court is not supported by the record.

      Winterroth’s remaining contentions, including that he is not subject to the

income tax laws, are unpersuasive.

      AFFIRMED.




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