                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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. 05-4012




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-4012
                                   ________________

                               RICHARD J. BARZESKI,

                                             Appellant

                                               v.

                    COMMISSIONER OF INTERNAL REVENUE

                      ____________________________________

                      On Appeal From the United States Tax Court
                               (Tax Court No. 7236-05)
                       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

       The Commissioner of Internal Revenue issued a notice of deficiency to Richard J.

Barzeski to assess taxes due for tax years 2001, 2002, and 2003. Barzeski filed a petition

in the United States Tax Court to contest the notice. He contended that he was not
required to file a tax return because tax forms carry an expired number from the Office of

Management and Budget, in violation of the Paperwork Reduction Act, and because

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 and 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 he based his claims of

error. Barzeski filed an amended petition, expanding on his previously asserted claims,

and adding the additional claim that the Commissioner had not proven that he had

received income for the years in question.1 The Tax Court held a hearing, and, on June

29, 2005, dismissed Barzeski’s petition and imposed a penalty of five thousand dollars.2

Barzeski appeals from the Tax Court’s decision. 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, he concedes on appeal that he “works and earns
income in the form of wages.” (Appellant’s Brief at 2.)
       2
        In July, the Tax Court vacated its June order of dismissal and decision because of
typographical errors, and substituted a new, but substantially identical, order of dismissal
and decision. Barzeski mistakenly refers to the June order in his August-filed notice of
appeal, but he gave the Tax Court and the Commissioner notice that he is appealing the
final decision in his case. Both parties have briefed the relevant issues.

                                              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). He did not

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

under Rule 34 of the Tax Court Rules. Instead, he 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 his motion for sanctions is denied.
