No. 70	                   November 20, 2014	511

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                    Erma L. GLASGOW,
                     Plaintiff-Appellant,
                               v.
                DEPARTMENT OF REVENUE,
                      State of Oregon,
                   Defendant-Respondent.
                   (TC 5183; SC S061958)

   En Banc
   On appeal from the Oregon Tax Court.*
   Henry C. Breithaupt, Judge.
   Submitted on the briefs; under advisement October 13,
2014.
   Erma L. Glasgow, appellant pro se, filed the briefs for
herself.
   Nate Carter, Assistant Attorney General, Salem, filed
the brief for respondent. With him on the brief was Ellen F.
Rosenblum, Attorney General.
   WALTERS, J.
   The judgment of the Oregon Tax Court is affirmed.




______________
	  *  21 OTR 316 (2013)
512	                                            Glasgow v. Dept. of Rev.

	          WALTERS, J.
	        In this appeal from a decision of the Oregon Tax
Court, Erma L. Glasgow (taxpayer) challenges the Tax
Court’s jurisdiction, its conclusion that she is liable for per-
sonal income taxes based on wages that she earned in tax
years 2007 through 2010, and its assessment of a penalty
for pursuing a frivolous appeal. See ORS 305.437(1) (autho-
rizing penalty for frivolous or groundless appeals to Tax
Court).1 We affirm.
	       Taxpayer did not file Oregon tax returns for the tax
years 2007 through 2010. Because taxpayer stated that she
was exempt from taxation, her employer did not withhold
any taxes from taxpayer’s paycheck during that period. In
2012, the Department of Revenue (DOR) filed a Notice of
Determination and Assessment (notice) for taxpayer’s 2007
through 2010 tax years. DOR also filed a notice directing
taxpayer’s employer to change her withholding certificate
to indicate that taxpayer was not exempt from taxation.
Taxpayer filed a challenge to DOR’s notice in the Magistrate
Division of the Oregon Tax Court, arguing that she was
exempt from withholding because, she contended, her wages
are not “income.” DOR filed a response that included a
request for a penalty for filing a frivolous proceeding under
ORS 305.437(1).
	       Taxpayer then filed a motion for change of venue
to the United States Supreme Court; taxpayer argued that
that Court had original jurisdiction over the matter under
Article III, section 2, of the United States Constitution
because the dispute was between a citizen and a state. The
Magistrate Division of the Tax Court issued a decision con-
cluding that it had jurisdiction to hear the case and deny-
ing taxpayer’s motion for change of venue. The Magistrate
Division determined that taxpayer’s challenge to DOR’s

	1
        ORS 305.437(1) provides, in part:
    	    “Whenever it appears to the Oregon Tax Court that proceedings before it
    have been instituted or maintained by a taxpayer primarily for delay or that
    the taxpayer’s position in such proceeding is frivolous or groundless, a pen-
    alty in an amount not to exceed $5,000 shall be awarded to the Department
    of Revenue by the Oregon Tax Court in its judgment.”
Cite as 356 Or 511 (2014)	513

notice was objectively unreasonable and therefore frivolous,2
denied taxpayer’s appeal of the notice, and awarded a pen-
alty of $1,000 under ORS 305.437(1).
	        Taxpayer appealed the magistrate’s decision to the
Regular Division of the Tax Court. She continued to main-
tain that the Tax Court lacked jurisdiction, asserting that,
although “the U.S. Supreme Court may not have original
jurisdiction of this case, neither do the Oregon Tax Courts.”
DOR filed a motion to dismiss taxpayer’s appeal under Tax
Court Rule (TCR) 21 A(8) for failure to state a legally cog-
nizable claim.3 Taxpayer filed a written response arguing
that the motion was “junk.” The Tax Court held a hearing
at which DOR warned taxpayer that DOR would seek fur-
ther penalties for advancing a frivolous argument if tax-
payer proceeded. Taxpayer nevertheless went ahead. After
the hearing, taxpayer submitted an “additional response
to defendant’s motion to dismiss” in which she continued
to dispute the Tax Court’s jurisdiction. She also asserted
that her wages were not “income” and that she was immune
from taxation under the Internal Revenue Code (IRC). She
further argued that DOR’s assessment of her tax liability
violated her right to equal protection.
	        The Tax Court granted DOR’s motion to dismiss.
The court concluded that it had jurisdiction over taxpayer’s
complaint and that taxpayer’s arguments were frivolous.
Accordingly, the court dismissed taxpayer’s complaint and
assessed a penalty of $2,000 in addition to the $1,000 pen-
alty that had been assessed in the Magistrate Division.
	       Before this court, taxpayer again asserts that her
wages are not “income” and that she is immune from taxation
under the IRC.4 This court has rejected similar arguments
	2
         ORS 305.437(2)(a) defines the term “frivolous”:
     	     “(a)  A taxpayer’s position is ‘frivolous’ if there was no objectively reason-
     able basis for asserting the position.”
	3
         TCR 21 A(8) provides that a party may move for dismissal of an action for
“failure to state ultimate facts sufficient to constitute a claim.”
	4
         Taxpayer also asserts two new arguments. First, she states that she is not a
“person” within the meaning of the IRC, but is rather a “citizen,” and thus exempt
from taxation. She also argues that payment of withholding taxes is voluntary.
Neither of those two questions was raised below, and they are accordingly unpre-
served for review by this court.
514	                                            Glasgow v. Dept. of Rev.

as frivolous. See Combs v. Dept. of Rev., 331 Or 245, 248,
14 P3d 584 (2000) (taxpayer’s claim that wages were not
“income” under the IRC was frivolous and groundless);
Clark v. Dept. of Rev., 332 Or 236, 237, 26 P3d 821 (2001)
(“Taxpayer’s views concerning the voluntary nature of the
income tax system and the nontaxability of wages paid by
private employers for an individual’s labor, however honestly
held, are so incorrect as to render legal arguments based on
them frivolous.”).
	        Taxpayer’s argument in this case is distinguishable
from those made in Combs and Clark only in that here tax-
payer also disputes the Tax Court’s jurisdiction. Although
the reasons that taxpayer advances in support of that argu-
ment have evolved since she first asserted it, taxpayer’s
jurisdictional argument was and continues to be without
merit.
	        In the Magistrate Division, taxpayer asserted that
the United States Supreme Court has original jurisdiction
over any controversy between a citizen and a state under
the second paragraph of Article III, section 2, of the United
States Constitution which states: “In all cases * * * in which
a state shall be party, the Supreme Court shall have orig-
inal jurisdiction.”5 That argument was frivolous. The first
paragraph of Article III, section 2, specifically enumerates
the cases over which federal courts have jurisdiction. Under
that paragraph, federal courts have jurisdiction over contro-
versies between states, between citizens of different states,

	5
       Article III, section 2, of the United States Constitution provides, in part:
   	     “The judicial power shall extend to all cases, in law and equity, arising
   under this Constitution, the laws of the United States, and treaties made, or
   which shall be made, under their authority;—to all cases affecting ambas-
   sadors, other public ministers and consuls;—to all cases of admiralty and
   maritime jurisdiction;—to controversies to which the United States shall be
   a party;—to controversies between two or more states;—between a state and
   citizens of another state;—between citizens of different states;—between
   citizens of the same state claiming lands under grants of different states,
   and between a state, or the citizens thereof, and foreign states, citizens or
   subjects.
   	     “In all cases affecting ambassadors, other public ministers and consuls,
   and those in which a state shall be party, the Supreme Court shall have
   original jurisdiction. In all the other cases before mentioned, the Supreme
   Court shall have appellate jurisdiction, both as to law and fact, with such
   exceptions, and under such regulations as the Congress shall make.”
Cite as 356 Or 511 (2014)	515

between citizens of the same state claiming lands under
grants of different states, and between a state and foreign
states. The second paragraph of Article III, section 2, does
not extend federal court jurisdiction beyond those enumer-
ated cases. United States v. Texas, 143 US 621, 643-44, 12 S
Ct 488, 36 L Ed 285 (1892). This case is not a case described
in the first paragraph of Article III, section 2, and is there-
fore not subject to the original jurisdiction of the United
States Supreme Court.
	        Before the Tax Court, taxpayer acknowledged
that her assertion that the United States Supreme Court
had original jurisdiction might be mistaken, but advanced
no other argument in support of her position that the Tax
Court lacked jurisdiction.6 ORS 305.410(1) grants the Tax
Court exclusive jurisdiction over cases arising under Oregon
tax laws, and taxpayer’s contentions to the contrary are
frivolous.7
	        Accordingly, we conclude that taxpayer’s arguments
in the Magistrate Division and in the Tax Court were friv-
olous, and that the Tax Court did not err in dismissing tax-
payer’s complaint. We therefore uphold the sanctions that
those courts imposed under ORS 305.437(1).
	          The judgment of the Oregon Tax Court is affirmed.




	6
        Taxpayer takes the same position in this court.
	7
        ORS 305.410(1) provides, in part:
    	     “Subject only to the provisions of ORS 305.445 relating to judicial review
    by the Supreme Court and to subsection (2) of this section, the tax court shall
    be the sole, exclusive and final judicial authority for the hearing and determi-
    nation of all questions of law and fact arising under the tax laws of this state.”
