                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT




    RICHARD JOHN SPONSEL,

                Petitioner-Appellant,

    v.                                                  No. 08-9009
                                                   (Tax Ct. No. 27944-07)
    COMMISSIONER OF INTERNAL                      (United States Tax Court)
    REVENUE,

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before MURPHY, McKAY, and ANDERSON, Circuit Judges.



         Petitioner Richard John Sponsel appeals an order of the Tax Court

dismissing his petition for redetermination of an income tax deficiency and

additions to the tax for failure to state a claim upon which relief can be granted.

Our jurisdiction arises under 26 U.S.C. § 7482(a)(1), and we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The Commissioner issued a notice of deficiency to Mr. Sponsel for tax year

2004. The deficiency and additional taxes totaled $3427. In his amended petition

for redetermination and in his responses to the Commissioner’s motion to dismiss,

Mr. Sponsel argued that (1) the IRS had failed to cite authority for the filing of a

Form 1040 Substitute For Return; (2) the notice of determination was in error

because “[t]he existence of a lawful deficiency must be predicated on signed

income tax returns---that do not exist;” R. doc. 8 at 1; (3) the IRS had failed to

cite any law requiring him, as an American citizen, to file an income tax return;

and (4) he could not be made to file a Form 1040 that has no valid OMB control

number as required by the Paperwork Reduction Act, 44 U.S.C. §§ 3501-3521.

The Tax Court concluded that Mr. Sponsel’s petition failed to raise a justiciable

issue and granted the Commissioner’s motion to dismiss.

      We review de novo the Tax Court’s dismissal for failure to state a claim.

Fox v. Comm’r, 969 F.2d 951, 952 (10th Cir. 1992). Accordingly, we apply the

same standard as a district court would in the first instance. Id. (citing 26 U.S.C.

§ 7482(a)). Because Mr. Sponsel proceeds pro se, we construe his pleadings

liberally. See Wheeler v. Comm’r, 528 F.3d 773, 781 (10th Cir. 2008).

      Mr. Sponsel’s arguments are all frivolous tax-protester arguments.

Mr. Sponsel does not deny that he failed to file a tax return for the 2004 tax year,

and it is unclear whether the Commissioner prepared a Substitute For Return.

If he did, his authority derived from 26 U.S.C. § 6020(b)(1); even if a substitute

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return was not prepared, the Commissioner was still within his authority to issue a

notice of deficiency. See Smalldridge v. Comm’r, 804 F.2d 125, 127 n.2 (10th

Cir. 1986); 26 U.S.C. § 6201.

      The Sixteenth Amendment to the United States Constitution authorizes

Congress to levy an income tax. Charczuk v. Comm’r, 771 F.2d 471, 473

(10th Cir. 1985); see also United States v. Collins, 920 F.2d 619, 629 (10th Cir.

1990) (“For seventy-five years, the Supreme Court has recognized that the

sixteenth amendment authorizes a direct nonapportioned [income] tax upon

United States citizens. . . .”). Statutory authority is found at 26 U.S.C. § 1 and

throughout Title 26 of the United States Code. Wheeler, 528 F.3d at 777. Notice

of the taxpayer’s duty to file a return and pay tax is found in 26 U.S.C. § 6012.

Mr. Sponsel’s argument based on the Paperwork Reduction Act is foreclosed by

our recent opinion in Wheeler, 528 F.3d at 780-81.

      The judgment of the United States Tax Court is AFFIRMED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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