                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-2008

Miller-Wagenknecht v. Comm IRS
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4714




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-4714
                                     ___________

                           J. J. MILLER-WAGENKNECHT,

                                                          Appellant

                                             v.

                    COMMISSIONER OF INTERNAL REVENUE
                     ____________________________________

                     On Appeal from the United States Tax Court
                               (Tax Court No. 8347-07)
                    Tax Court Judge: Honorable Lewis R. Carluzzo
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 15, 2008

              Before: AMBRO, FUENTES and FISHER, Circuit Judges.

                                (Filed: July 22, 2008 )
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      J. J. Miller-Wagenknecht appeals, pro se, from the order of the United States Tax

Court dismissing her case. We will affirm.
                                                I.

          It appears undisputed that Miller-Wagenknecht never filed Form 1040 federal

income tax returns for the 2003 and 2004 tax years. Instead, she submitted to the

Commissioner of Internal Revenue documents for the respective years entitled “Notice of

Affidavit Statement of :J.-J.: Miller-Wagenknecht In Protest of Internal Revenue Code

Section 6011.” Miller-Wagenknecht claimed “zero” tax liabilities for both years based

on, among other things, the notion that she was not subject to federal income taxation.

          During 2003 and 2004, Miller-Wagenknecht respectively received self-

employment income in the amounts of $89,204 and $79,233, wages of $1,504 and $1,480

from an insurance company, and taxable Social Security benefits of $14,787 and $15,096.

The Commissioner accordingly issued a notice of deficiency determining that she owed

federal income taxes as well as penalties for failure to file tax returns and to pay estimated

taxes.1

          Miller-Wagenknecht then filed a petition in the Tax Court alleging, inter alia, that

the Commissioner’s determinations were erroneous because no “valid original return”

was filed or appeared on the IRS’s computer records. (A000020-A000021.) The




          1
        According to the notice of deficiency, Miller-Wagenknecht owed the following
amounts: (1) income taxes of $33,481 for 2003 and $29,211 for 2004; (2) penalties of
$8,370.25 for 2003 and $7,302.75 for 2004 on account of her failure to file tax returns;
and (3) penalties of $876.21 for 2003 and $847.90 for 2004 for failing to pay estimated
taxes. The Commissioner also assessed additional penalties for failure to pay under
I.R.C. § 6651(a)(2).

                                                2
Commissioner moved to dismiss the case for failure to state a claim upon which relief

could be granted. The Tax Court ordered Miller-Wagenknecht to file an amended

petition containing the allegations of error and statements of fact required by Tax Court

Rule 34. She accordingly filed an amended petition containing additional claims and

allegations. The Tax Court, however, granted the Commissioner’s motion and dismissed

the case. It was “satisfied that the amended petition fails to raise any justiciable issue

either with respect to the deficiencies or the additions to tax.” (A000003.) It further

concluded that her failure to file income tax returns did not preclude the Commissioner

from making the deficiency determinations.

       Miller-Wagenknecht filed a motion to vacate, which the Tax Court denied. She

then filed a timely notice of appeal.2

                                              II.

       Especially given the rigorous pleading requirements of Tax Court Rule 34, the Tax

Court properly dismissed the petition because of Miller-Wagenknecht’s failure to state

any claim upon which relief could be granted. She has not raised, either before the Tax

Court or in this present appeal, any serious dispute as to either her receipt of unreported

income in the amounts stated by the Commissioner or her failure to file the necessary




       2
        We have jurisdiction over this Tax Court appeal pursuant to I.R.C. § 7482(a)(1).
We exercise plenary review over the Tax Court’s conclusions of law and review its
factual findings for clear error. See, e.g., PNC Bancorp, Inc. v. Comm’r, 212 F.3d 822,
827 (3d Cir. 2000).

                                              3
federal income tax returns and pay the federal taxes due. In the words of the

Commissioner’s appellate brief, “her only comprehensible challenges to the

Commissioner’s determination [before the Tax Court] consisted of broad, conclusory

denials of liability and frivolous, tax protest-type arguments.” (Appellee’s Br. at 12.) We

likewise reject the arguments raised by Miller-Wagenknecht on appeal because they are

without merit.

       Among her numerous contentions, Miller-Wagenknecht appears to argue that the

Form 1040 tax returns for 2003 and 2004 did not comply with the requirements of the

Paperwork Reduction Act (“PRA”), see 44 U.S.C. §§ 3501-31. She actually admits that

the form included an Office of Management and Budget (“OMB”) control number. In

turn, Treasury Regulation § 602.101 expressly lists this particular number among the

many others “assigned to collections of information in [IRS] regulations by the [OMB]

under the [PRA].” 26 C.F.R. § 602.101(a). Accordingly, it is well established that Form

1040 satisfies the requirements of the PRA. See, e.g., United States v. Patridge, 507 F.3d

1092, 1095 (7th Cir. 2007), cert. denied, 128 S. Ct. 1721 (2008); United States v. Dawes,

951 F.2d 1189, 1193 (10th Cir. 1991). In any case, any alleged noncompliance with the

PRA paperwork requirements would not preclude the Commissioner from assessing

federal income tax liability and enforcing the statutory obligations requiring taxpayers to

file federal income tax returns. See, e.g., Patridge, 507 F.3d at 1095; United States v.

Hicks, 947 F.2d 1356, 1359-60 (9th Cir. 1991).



                                             4
       Miller-Wagenknecht further argues that she did in fact file federal income tax

returns for 2003 and 2004. Specifically, she points to the self-styled “Notice of

Affidavit” documents she sent to the Commissioner. According to the Seventh Circuit

decision cited in her opening and reply briefs, “[t]he cases hold that to be deemed a

return, a document filed with the IRS must (1) purport to be a ‘return,’ (2) be signed

under penalty of perjury, (3) contain enough information to enable the taxpayer’s tax

liability to be calculated, and (4) ‘evince[] an honest and genuine endeavor to satisfy the

law.’” In re Payne, 431 F.3d 1055, 1057 (7th Cir. 2005) (quoting Zellerbach Paper Co. v.

Helvering, 293 U.S. 172, 180 (1934); United States v. Moore, 627 F.2d 830, 834-35 (7th

Cir. 1980)).

       Miller-Wagenknecht’s submissions to the IRS did not satisfy either the third or the

fourth requirements. Her “Notices of Affidavits” failed to provide the financial

information required to calculate her tax liabilities for 2003 and 2004. See, e.g., United

States v. Edelson, 604 F.2d 232, 234 (3d Cir. 1979) (per curiam) (“[I]t is now well

established that tax forms that do not contain financial information upon which a

taxpayer’s tax liability can be determined do not constitute returns within the meaning of

the Internal Revenue Code.” (citations omitted)). They also did not represent a honest

and reasonable attempt to satisfy her tax law requirements. Instead, the lengthy

documents, each consisting of almost 50 single-spaced pages, constituted, at best, legal

briefs challenging the legality and applicability of the federal income tax. Her claims of



                                             5
“zero” tax liabilities were based, not on a real account of her financial circumstances, but

on frivolous legal theories for why she was not personally subject to the federal income

tax and why the Commissioner’s enforcement of the Internal Revenue Code was

unconstitutional and illegal. The Commissioner in turn had no legal obligation to respond

to her extensive and unsupported submissions. Accordingly, the Commissioner and the

Tax Court properly determined that Miller-Wagenknecht failed to file federal income tax

returns for the years at issue.

       Finally, we have considered Miller-Wagenknecht’s remaining arguments, and we

conclude that they also are lacking in any conceivable merit. For instance, her argument

that the IRS failed to establish its jurisdiction over her merely reiterated some of the

frivolous “tax protest” theories presented in her “Notices of Affidavit.” Simply put, the

Internal Revenue Code imposes an income tax on the taxable income of all citizens or

residents of the United States. It cannot be seriously disputed that Miller-Wagenknecht,

who was evidently born in Ohio and currently resides in Pennsylvania, is a citizen and

resident of the United States for federal income tax purposes. See, e.g., Lonsdale v.

United States, 919 F.2d 1440, 1447 & n.4, 1448 (10th Cir. 1990) (listing frivolous “tax

protest” theories); Sauers v. Comm’r, 771 F.2d 64, 66 & n.2, 67, 68 n.6 (3d Cir. 1985)

(same). We further reject her contention that the notice of deficiency was invalid on the

grounds that it was not “signed” by the Commissioner under penalty of perjury. See, e.g.,

Urban v. Comm’r, 964 F.2d 888, 889-90 (9th Cir. 1992) (per curiam). Given her failure



                                              6
to file the requisite returns, the IRS also properly prepared its own substitute tax returns

for 2003 and 2004 pursuant to I.R.C. § 6020(b)(1).

                                             III.

       For the foregoing reasons, we conclude that the Tax Court properly dismissed the

case for failure to state a claim. Accordingly, we will affirm.




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