                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2006

Barzeski v. Comm IRS
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4013




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"Barzeski v. Comm IRS" (2006). 2006 Decisions. Paper 1374.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1374


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-4013
                                  ________________

                              SHARON L. BARZESKI,

                                           Appellant

                                             v.

                   COMMISSIONER OF INTERNAL REVENUE

                     ____________________________________

                     On Appeal From the United States Tax Court
                              (Tax Court No. 7237-05)
                      Tax Court Judge: Honorable John F. Dean

                   _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 27, 2006

       Before: BARRY, STAPLETON AND GREENBERG, CIRCUIT JUDGES

                               (Filed March 28, 2006)
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Appellant Sharon L. Barzeski did not file income tax returns for tax years 2001,

2002, and 2003. The Commissioner of Internal Revenue calculated the taxes due for

those years based on Barzeski’s wages and interest income reported on W-2 and 1099-
INT forms submitted by third parties, and issued a notice of deficiency to her. Barzeski

filed a petition in the United States Tax Court to contest the notice. In her petition, she

argued that the notice of deficiency was issued in error because she was not a person

obligated to file a tax return. In support of her position, she claimed that the Internal

Revenue Service does not use a valid control number from the Office of Management and

Budget on its forms. She also contended that the modification, over time, of the amount

of income exempt from taxation violated the Ex Post Facto clause. The Commissioner

filed a motion to dismiss the petition for failure to state a claim. The Commissioner also

moved for sanctions pursuant to 26 U.S.C. § 6673.

       Upon consideration of the Commissioner’s motions, the Tax Court ordered

Barzeski to file an amended petition to specifically identify the alleged errors in the

deficiency determination and to separately state the facts on which she based her claims

of error. Barzeski filed an amended petition, in which she elaborated on the two

arguments in her first petition and added the additional claim that the Commissioner had

not proven that she had received income for the years in question.1 After a hearing, the

Tax Court dismissed Barzeski’s petition and imposed a penalty of five thousand dollars.

Barzeski appeals. The parties have filed cross-motions for sanctions, and Barzeski has

filed a motion to strike the Commissioner’s motion for sanctions.


       1
       In relation to this claim, Barzeski disputed that the term “wages” means
compensation for labor. However, in her brief before us, she concedes that she “works
and earns income in the form of wages.” (Appellant’s Brief at 2.)

                                              2
       We have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1). We exercise plenary

review over the Tax Court’s conclusions of law, and review the Tax Court’s factual

findings for clear error. See PNC Bancorp, Inc. v. Comm’r of Internal Revenue, 212 F.3d

822, 827 (3d Cir. 2000). We review the Tax Court’s imposition of a penalty under § 6673

for an abuse of discretion. See Sauers v. Comm’r of Internal Revenue, 771 F.2d 64, 65

(3d Cir. 1985).

       We will affirm because the Tax Court properly dismissed Barzeski’s petition and

did not abuse its discretion in imposing a penalty. Barzeski did not advance claims to

undermine the Commissioner’s determinations in the notice of deficiency, which are

presumptively correct, see Helvering v. Taylor, 293 U.S. 507, 515 (1935). She did not

even assert clear and concise claims of specific error to meet her pleading obligation

under Rule 34 of the Tax Court Rules. Instead, she put forth frivolous and groundless

arguments to protest the imposition of income tax. See, e.g., United States v. Wunder,

919 F.2d 34, 38 (6th Cir. 1990). We agree with the Tax Court that no extended

discussion is necessary, see Crain v. Comm’r of Internal Revenue, 737 F.2d 1417, 1417

(5th Cir. 1984) (per curiam), and hold that the Tax Court properly dismissed Barzeski’s

petition. Also, in light of Barzeski’s arguments, we discern no abuse of discretion in the

Tax Court’s imposition of a § 6673 penalty on Barzeski.

       The Commissioner’s motion for sanctions is granted in the sum of $1000 (one

thousand dollars), and Barzeski’s motion to strike and her motion for sanctions is denied.
