
USCA1 Opinion

	




          May 6, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1916                                          UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                  BRIAN R. GARDELL,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin,  Senior U.S. District Judge]                                          ___________________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Brian R. Gardell on brief pro se.               ________________               Michael L. Paup, Acting  Assistant Attorney General, Gary R.               _______________                                      _______          Allen, Charles E. Brookhart and  Scott P. Towers, Attorneys,  Tax          _____  ____________________      _______________          Division, Department of Justice on brief for appellee.                                  __________________                                  __________________                 Per Curiam.  Appellant Brian Gardell appeals an order of                 __________            the  United States  District Court  for  the District  of New            Hampshire  approving the  report  and recommendation  of  the            magistrate  judge that  he  comply with  an Internal  Revenue            Service [IRS]  summons issued pursuant  to 26 U.S.C.    7602.            The administrative  summons directs Gardell to  appear at the            IRS office  in Portsmouth,  New Hampshire, to  give testimony            and to produce for examination books and  records relating to            his  tax  liabilities  for the  years  1985  and  1987.   Tax            liabilities had previously been assessed against Gardell  for            these years and the  purpose of the summons was  to determine            the collectability of these  liabilities.  On appeal, Gardell            asserts  that  the  district  court  lacked  jurisdiction  to            enforce the  summons since Gardell has  the "Status . .  . of            Freeman and  . . .  has no Contractual,  Quasi-Contractual or            implied  agreements with  the Federal  Government."   He also            contends  that the  enforcement of  the summons  violated his            constitutional right  to due process.   We affirm essentially            on the grounds stated  by the magistrate judge in  his report            and  recommendation  dated July  7, 1993.    We add  only the            following remarks.                 First, Gardell's contention that as  a "Freeman" without            contractual obligations  to the government he  is not subject                                         -2-            to  the  district  court's  jurisdiction is  totally  without            merit.1  See  United States  v. Sloan, 939  F.2d 499,  500-01                     ___  _____________     _____            (7th  Cir. 1991)  (contention  that appellant  was free  from            income  tax because he was a "freeborn, natural individual  .            . . [and thus] not subject to the jurisdiction of laws of the            United  States" is  frivolous), cert.  denied, 112  S.Ct. 940                                            ____   ______            (1992);  United States v. Drefke, 707 F.2d 978, 981 (8th Cir.                     _____________    ______            1983) (claim that "taxes are debts which can only be incurred            voluntarily when individuals contract with the government for            services . .  . is  totally without  arguable merit"),  cert.                                                                    ____            denied,  464 U.S. 942 (1983).  The district court has subject            ______            matter  over  a petition  to  enforce  an IRS  administrative            summons  pursuant  to  26  U.S.C.     7604(a).    It acquired            personal jurisdiction  over Gardell through service  upon him            of  the show  cause  order and  the petition  of enforcement.            United  States v.  Bichara, 826  F.2d 1037,  1039  (11th Cir.            ______________     _______            1987); United States v.  Miller, 609 F.2d 336, 338  (8th Cir.                   _____________     ______            1979).                     Second,  the record makes clear that the IRS has met its            burden  of establishing a prima facie case for enforcement of                                      _____ _____                                            ____________________            1.  Similarly  frivolous  is  Gardell's  contention  that the            taxing of wages  is unconstitutional.   See, e.g., Wilcox  v.                                                    ___  ___   ______            Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) (contention            ____________            that wages  are not  income for  tax purposes  is frivolous);            Casper v. Commissioner,  805 F.2d 902,  906 (10th Cir.  1986)            ______    ____________            (appellant's  contention that  amount  he  received from  his            employer is  not taxable  income is "clearly  without merit")            (citing cases).                                         -3-            the administrative summons  as set  out in  United States  v.                                                        _____________            Powell, 379 U.S.  48 (1964).   See also  Sylvestre v.  United            ______                         ___ ____  _________     ______            States,  978 F.2d 25, 26  (1st Cir. 1992),  cert. denied, 113            ______                                      ____  ______            S.Ct.  1606 (1993).    Gardell,  who  concedes that  the  IRS            satisfied these requirements, thereupon  bears the burden  of            showing,  by  an  allegation  of  specific  facts,  that  the            enforcement  of the summons would  constitute an abuse of the            court's process--"that  is, that the summons  had been issued            for an improper purpose  or for any other purpose  reflecting            on  the good faith of  the investigation." Id.  at 27 (citing                                                       __            Powell, 379 U.S. at  58).  The only arguments  Gardell raised            ______            in  this  regard  either  before this  court  or  before  the            district court challenge the  liabilities which were assessed            against  him and  which  underlie the  summons.   However,  a            challenge  to an assessment of liability  can only be brought            in Tax Court within ninety days of the mailing of a notice of            deficiency, see 26 U.S.C.    6213(a), or before the  district                        ___            court after the payment of the  tax, id.   7422 (until tax is                                                 __            paid, district  court without jurisdiction to hear allegation            that  tax has been erroneously  assessed).2    A challenge to            the  underlying assessment  is  not a  valid  defense to  the            enforcement of an  administrative summons,  United States  v.                                                        _____________                                            ____________________            2.  There is no evidence that Gardell  ever attempted to file            a petition  for redetermination  of his liabilities  with the            Tax  Court.   According to  this IRS,  the time  to challenge            Gardell's tax liability in Tax Court has now passed.                                         -4-            Harper,  662  F.2d  335, 336  (5th  Cir.  1981) (per  curiam)            ______                                           ___  ______            (taxpayer challenge to underlying assessment does not suffice            to  meet  his  burden  to  show  improper  purpose),  and  is            misplaced in an appeal from a district court order  enforcing            one,  United States  v. Mueller,  930 F.2d  10, 12  (8th Cir.                  _____________     _______            1991)  ("district court  correctly  held  that [the  summoned            party]  could  not use  the  proceedings to  enforce  the IRS            summons as a forum  in which to contest  the validity of  the            underlying assessments.").    Since Gardell  was afforded  an            opportunity  to challenge  the  administrative summons  in an            adversarial proceeding before the district court prior to the            enforcement of the summons, he suffered no deprivation of his            constitutional right to due process.  See Reisman v.  Caplin,                                                  ___ _______     ______            375  U.S.   440,  446,   449-50  (1964)   (no  constitutional            invalidity  in  procedure for  enforcement  of  summons since            there  is "full  opportunity for  judicial review  before any            coercive  sanctions  may  be  imposed");  United  States   v.                                                      ______________            Gilleran, 992 F.2d 232,  233-34 (9th Cir. 1993) ("no  liberty            ________            or property interest protectable by due  process prior to the            enforcement of the summons") .                 Finally,  the IRS  asks this  court to  impose sanctions            against appellant for bringing a frivolous appeal.  Gardell's            challenges to the administrative summons are frivolous and/or            misplaced.   Both this court and others have not hesitated to            impose sanctions for similarly frivolous appeals.  See, e.g.,                                                               ___  ___                                         -5-            Kelly  v.  United States,  789 F.2d  94,  98 (1st  Cir. 1986)            _____      _____________            (imposing sanctions on appellant  who claimed that because he            was  a "natural  individual  and unenfranchised  freeman" who            neither asked for nor  received privileges from government he            owed  no tax); Sullivan v.  United States, 788  F.2d 813, 816                           ________     _____________            (1st  Cir. 1986) (similar); see also Wilcox, 848 F.2d at 1008                                        ___ ____ ______            (appellant  contended wages  are  not income  and payment  of            taxes is voluntary); Casper v. Commissioner, 805  F.2d at 906                                 ______    ____________            (similar).   We  agree that  sanctions are warranted  in this            case.   Although the Government seeks $1,500 in lieu of costs            and attorneys' fees, we, in accord with our prior practice in            similar cases,  assess only double costs  against Gardell for            bringing a frivolous appeal.  Fed. R. App. P. 38.                 The judgment of the district  court is affirmed.  Double                                                        ________   ______            costs are assessed against appellant.            ____________________________________                                         -6-
