                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          APR 13 2001
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MICHELE D. HEMBREE
    BRASHIER,

             Petitioner-Appellant,
                                                        No. 00-9006
    v.                                              (T.C. No. 14992-99)
                                                      (U.S. Tax Court)
    COMMISSIONER OF INTERNAL
    REVENUE,

             Respondent-Appellee.


    RICHARD D. HEMBREE,

             Petitioner-Appellant,

    v.                                                  No. 00-9007
                                                    (T.C. No. 14993-99)
    COMMISSIONER OF INTERNAL                          (U.S. Tax Court)
    REVENUE,

             Respondent-Appellee.


                          ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.

       Petitioners Michelle D. Hembree Brashier and Richard D. Hembree failed

to file income tax returns for the years 1994, 1995, and 1996, and the Internal

Revenue Service (IRS) issued them notices of deficiency. Petitioners appeal the

decisions by the United States Tax Court (1) dismissing their petitions for

redetermination of their tax deficiencies because they failed to state claims; and

(2) holding them liable for the deficiencies and additions identified by the IRS.

We have jurisdiction pursuant to 26 U.S.C. § 7482. Because petitioners have

raised only frivolous arguments in this appeal, we affirm the Tax Court and grant

respondent’s motion for sanctions.

       This court reviews de novo the Tax Court’s dismissal of a petition for

failure to state a claim. Fox v. Commissioner, 969 F.2d 951, 952 (10th Cir.

1992). Petitioners argue that requiring them to file sworn income tax returns

violates their Fifth Amendment right against self-incrimination. This argument

has been rejected numerous times by both the United States Supreme Court and

this court. Starting with United States v. Sullivan, 274 U.S. 259, 263-64 (1927),

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the Supreme Court held that a taxpayer could not avoid filing a sworn income tax

return by claiming privilege under the Fifth Amendment, stating:

               In the decision that [the requirement to file a return] was
      contrary to the Constitution we are of opinion [sic] that the
      protection of the Fifth Amendment was pressed too far. If the form
      of return provided called for answers that the defendant was
      privileged from making he could have raised the objection in the
      return, but could not on that account refuse to make any return at
      all. . . . It would be an extreme if not an extravagant application of
      the Fifth Amendment to say that it authorized a man to refuse to state
      the amount of his income because it had been made in crime. But if
      the defendant desired to test that or any other point he should have
      tested it in the return so that it could be passed upon. He could not
      draw a conjurer’s circle around the whole matter by his own
      declaration that to write any word upon the government blank would
      bring him into danger of the law.

The Supreme Court reiterated this rule in Garner v. United States, 424 U.S. 648,

650 (1976), stating “the privilege against compulsory self-incrimination is not a

defense to prosecution for a failing to file a return at all[, but] the privilege [can]

be claimed against specific disclosures sought on a return.” The court

emphasized that nothing in the Garner opinion questioned “the continuing validity

of Sullivan’s holding that returns must be filed.” Id. at 650, n.3.

      The Tenth Circuit has also held consistently that a taxpayer may not refuse

to file a tax return under the auspices of the Fifth Amendment. See, e.g., Betz v.

United States, 753 F.2d 834, 835 (10th Cir. 1985) (“It is well settled that the Fifth

Amendment general objection [to filing a proper tax return] is not a valid claim of

the constitutional privilege.”); United States v. Stillhammer, 706 F.2d 1072,

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1076-77 (10th Cir. 1983) (holding, based on Garner and Sullivan, that “[t]he Fifth

Amendment does not serve as a defense for failing to make any tax return,” and

that “a general objection under the Fifth Amendment . . . is not a valid claim of

the constitutional privilege which must be made as to specific items of

information”); United States v. Brown, 600 F.2d 248, 251-52 (10th Cir. 1979)

(holding disclosure of income is not protected by the Fifth Amendment, and that

“it is an illegal effort to stretch the Fifth Amendment to include a taxpayer who

wishes to avoid filing a return”); United States v. Irwin, 561 F.2d 198, 201 (10th

Cir. 1977) (“[I]t is well established that the Fifth Amendment cannot be stretched

so far as to absolve a taxpayer’s duty to file a return.”).

      Petitioners also argue that the IRS is without constitutional authority to

impose penalties and interest. We do not address this argument, however,

because it was not raised to the Tax Court. See Tele-Communications, Inc. v.

Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997) (noting general rule that

appellate court will not consider an issue raised for the first time on appeal).

      Finally, respondent requests that we impose sanctions against petitioners

for filing frivolous appeals. This court has the inherent power to impose

sanctions to regulate the docket, promote judicial efficiency, and deter frivolous

filings. Betz, 753 F.2d at 835. The court also has statutory power to impose

sanctions pursuant to 28 U.S.C. § 1912, and Federal Rule of Appellate Procedure


                                           -4-
38, both of which authorize an award of damages and single or double costs. In

Casper v. Commissioner, 805 F.2d 902, 906 (10th Cir. 1986), we adopted a rule

“awarding a flat fee of $1,500 as a sanction for a frivolous appeal from a Tax

Court decision.” We held this amount would “(1) provide an effective sanction

for the bringing of a frivolous appeal, (2) serve as an effective deterrent to the

bringing of future frivolous appeals, and (3) recompense the government for at

least the direct costs of the appeal.” Id.

      Because petitioners’ Fifth Amendment argument has been rejected

consistently for more than seventy years, and because the Tax Court warned them

that their argument was frivolous, sanctions are warranted. Although Casper

permits us to sanction each of the petitioners in the amount of $1,500, we

recognize that their act of filing of joint briefs reduced the government’s response

costs. Accordingly, we conclude it is appropriate to impose a $1,000 sanction on

each petitioner.




                                             -5-
      The decisions of the Tax Court are AFFIRMED, and respondent’s sanctions

motion is GRANTED in the amount of $1,000 against each petitioner. The

mandates shall issue forthwith.



                                                Entered for the Court



                                                Michael R. Murphy
                                                Circuit Judge




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