                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                     July 1, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 04-60863
                        Summary Calendar



LEONARD JOHN GITTINGER, III,

                                       Petitioner-Appellant,

versus

COMMISSIONER OF INTERNAL REVENUE

                                       Respondent-Appellee


                       --------------------
             Appeal from the United States Tax Court
                             14996-03L
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:*

     Petitioner-Appellant Leonard John Gittinger, III

(“Gittinger”) failed to file a tax return for the tax year 1996.

After determining that Gittinger failed to report wage, dividend

and interest income paid to him during 1996, Respondent-Appellee

Commissioner of Internal Revenue (“IRS”) mailed to Gittinger on

December 4, 1998 a notice of deficiency for 1996.     Although

Gittinger has acknowledged that he received the notice of

     *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

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deficiency from the IRS, he failed to challenge the notice.    On

November 24, 2001, the IRS sent Gittinger a Final Notice of

Intent to Levy and Notice of Your Right to a Hearing (“levy

notice”) with regard to his unpaid taxes for 1996.   On September

6, 2002, the IRS mailed to Gittinger a Notice of Federal Tax Lien

Filing and Notice of Your Right to a Hearing with regard to his

unpaid taxes for 1996.

     Gittinger finally responded to the IRS on October 7, 2002

when he submitted a Request for a Collection Due Process Hearing.

     On July 31, 2003, the IRS mailed to Gittinger a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (“notice of determination”) which stated that the IRS

had determined that it was appropriate to file the disputed

federal tax lien.   On August 5, 2003, the IRS mailed to Gittinger

a Decision Letter Concerning Equivalent Hearing (“decision

letter”) which stated that the IRS had determined that it was

appropriate to proceed with the proposed levy.

     On September 5, 2003, Gittinger filed a Petition for Lien or

Levy Action in the tax court below challenging both the notice of

determination dated July 31, 2003 and the decision letter dated

August 5, 2003.

     On June 22, 2004, the tax court granted summary judgment in

favor of the IRS, sustaining the notice of determination.    The

tax court found (1) that Gittinger had waived his right to

challenge his underlying tax liability by failing to respond to

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the notice of deficiency for 1996 that was mailed to him on

December 4, 1998;1 (2) that even had he not waived his right to

challenge the tax liability, his argument that he is not a

“taxpayer” was frivolous and groundless; and (3) that Gittinger

did not allege any irregularity in the assessment procedure, nor

did he assert any valid defenses or offer an alternative means of

collection.

                              DISCUSSION

     On appeal, Gittinger advances the same frivolous and

groundless arguments that he advanced below.   As the tax court

properly found, Gittinger waived his right to challenge the

underlying tax liability for 1996 by failing to file a timely

response to the notice of deficiency mailed to him on December 4,

1998.    See Goza v. Commissioner, 114 T.C. 176 (2000); I.R.C. §

6330(c)(2)(B).   Even had he not waived his right to challenge the

underlying tax liability, his arguments are completely and

utterly frivolous, generally relating to the proposition that

wage income is not taxable income.    See I.R.C. §§ 1(a)(1),

61(a)(1), 7701(a)(1), (14).    As we have previously noted, there

is no need for us to refute “with somber reasoning and copious

citation of precedent” the notion that wages are not income, lest

by doing so we suggest that this argument has some colorable



     1
      See Goza v. Commissioner, 114 T.C. 176 (2000); I.R.C. §
6330(c)(2)(B).

                                  3
merit.   Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir.

1984).

     After Gittinger had procedurally defaulted his ability to

challenge the underlying tax liability, the only issues before

the tax court were whether the IRS followed proper procedures and

complied with all applicable laws and administrative procedures

in this case and whether Gittinger raised any valid defenses.

Because Gittinger did not even allege any irregularity in the

assessment procedure and he did not raise a valid defense or

offer an alternative means of collection, we have no difficulty

whatsoever affirming the tax court’s judgment.

     For the foregoing reasons, the tax court’s judgment is in

all ways AFFIRMED, and Respondent-Appellee’s motion for sanctions

under Rule 38 in the amount of $6,000.00 is GRANTED.




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