                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   July 1, 2008
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court


    KATHLEEN BACHMAN,

                Petitioner-Appellant,

    v.                                                  No. 07-9009
                                                    (T.C. No. 10959-04)
    COMMISSIONER OF INTERNAL                        (Petition for Review)
    REVENUE,

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Kathleen Bachman, proceeding pro se, appeals from the United States Tax

Court’s (1) denial of her motion for summary judgment; (2) grant of the

Commissioner of Internal Revenue’s motion for summary judgment; (3) denial of

her request for discovery; (4) decision that she must pay a deficiency of $6010.00

and a $762.75 addition to tax under 26 U.S.C. § 6651(a)(1) for failure to file a


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
valid tax return for 1994, a $1054.00 deficiency and a $175.50 addition to tax for

1998, a $4934.00 deficiency and a $467.50 addition to tax for 1999, and a

$5541.00 deficiency and a $506.00 addition to tax for 2000; and (5) imposition of

a $4000.00 sanction under 26 U.S.C. § 6673(a)(1). The Commissioner has filed a

motion for sanctions in the amount of $8000.00, arguing that this appeal is

frivolous. Exercising jurisdiction under 26 U.S.C. § 7482(a)(1), we affirm the

Tax Court’s decisions, but we deny the Commissioner’s motion for sanctions.

                                          I.

      Ms. Bachman filed federal income tax returns in 1994, 1998, 1999, and

2000 indicating she had no income and requesting a refund of the income taxes

withheld by her employers. She appended to each return the W-2 forms from her

employers and statements making various tax protestor arguments that wages are

not taxable income. The Commissioner issued notices of deficiency to

Ms. Bachman for each year, asserting both the deficiencies in her payment of

income taxes and the failure-to-file penalties under § 6651(a)(1). In her second

amended petition for redetermination, she alleged that the Commissioner

“erroneously relied on unidentified purported third-party reports which

purportedly alleged [she] was paid unreported income,” that the Commissioner

arbitrarily asserted penalties, and that the signer of the deficiency notices lacked

delegated authority to do so. I R., Doc. 10 at 2.




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      During discovery, she asked the Commissioner to admit that there are no

published tax tables as required by 26 U.S.C. § 1(f). Additionally, she moved for

summary judgment, asserting that because the amounts of deficiency were not

based in § 1, the Commissioner’s notices of deficiency were arbitrary and without

statutory authority. Further, she contended that the failure-to-file penalties were

improper since there was no authority for any deficiency assessments. The

Commissioner responded that the Revenue Procedures contained the tax tables for

the years in question. The Tax Court denied Ms. Bachman’s motion for summary

judgment.

      Because Ms. Bachman failed to comply with the Commissioner’s discovery

requests and the Tax Court’s discovery orders, the court granted the

Commissioner’s sanctions motion, holding that if the case went to trial, testimony

or documentary evidence she offered would not be admitted if it was

contemplated by the Commissioner’s discovery requests. Following this order,

the Commissioner moved for summary judgment and requested sanctions under

§ 6673. The Commissioner argued that summary judgment was warranted

because the notices of deficiency were based on the tax returns filed by

Ms. Bachman and third-party information, she made no arguments concerning the

income adjustments in the deficiency notices, her frivolous arguments have been

rejected, and the penalties were justified because she had not filed valid tax

returns or provided any reason for failing to do so. Also, the Commissioner

                                         -3-
argued that sanctions under § 6673 were appropriate because her arguments were

frivolous, she instituted the proceedings for purposes of delay, and she failed to

comply with the Tax Court’s discovery orders. Ms. Bachman responded that the

Commissioner submitted unauthenticated documents and inadmissible hearsay and

that even if the Commissioner had presented admissible evidence, his argument

was contradictory because he first claimed she filed tax returns and then, for

purposes of the § 6651(a)(1) penalties, contended she did not.

      The Tax Court granted the Commissioner’s motion for summary judgment

and ordered a $4000.00 sanction. The court reasoned:

             The disgraceful manner in which [Ms. Bachman] has elected to
      proceed in this case has caused unnecessary waste of resources by
      the Court and [the Commissioner]. The resultant procedural history
      of this case, however, now leaves us little to do other than grant,
      without further explanation, [the Commissioner’s] motion. Her
      behavior in this case, coupled with the manner in which [she] elected
      to submit a Form 1040, U.S. Individual Income Tax Return for each
      year in issue makes it clear that the imposition of a I.R.C. § 6673 is
      appropriate.

IV R., Doc. 53 at 1. Ms. Bachman appealed.

                                         II.

                                         A.

      She first argues that the Tax Court erred in granting the Commissioner’s

motion for summary judgment. “We review Tax Court decisions ‘in the same

manner and to the same extent as decisions of the district courts in civil actions

tried without a jury.’” Olpin v. Comm’r, 270 F.3d 1297, 1298 (10th Cir. 2001)

                                         -4-
(quoting § 7482(a)(1)). Thus, we review the Tax Court’s summary judgment

determination de novo. Id. Summary judgment may be granted “if the pleadings,

answers to interrogatories, depositions, admissions, and any other acceptable

materials, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that a decision may be rendered as a matter of law.”

T.C. Rule 121(b).

      Ms. Bachman continues to argue that the Commissioner’s deficiency

assessment was arbitrary because the Commissioner provided no statutory or

regulatory evidence of tax tables and provided no evidence that the amounts of

tax alleged due in the notices of deficiency were based upon computations from

the tax tables. The Commissioner, however, cited § 1 as the basis for taxation

and established that the Revenue Procedures printed the relevant tax tables

referred to in § 1(f) for the years at issue. The Revenue Procedures provide

sufficient authority for the deficiency notices. Cf. Neufeld v. Comm’r, 95 T.C.M.

(CCH) 1311, 2008 WL 877841, at *1 n.2 (2008) (deciding that argument that

Commissioner was precluded from assessing tax liabilities because tax tables

were not maintained in Internal Revenue Code or regulations pursuant to § 1(f)

was meritless and frivolous where tax tables were published in Revenue

Procedures and in instructions to Form 1040).

      Ms. Bachman also argues that the Commissioner supported its summary

judgment motion with hearsay and unauthenticated materials. We need not

                                          -5-
address this issue, as Ms. Bachman does not dispute the amounts of the deficiency

assessments, and she admits that the notices of deficiency were properly admitted

since she had attached them to her petition for redetermination, IV R., Doc. 50 at

3; see also I R., Doc. 6, Attachs. Thus, it is clear she failed to bear her burden of

showing the deficiency determinations were incorrect. See Schelble v. Comm’r,

130 F.3d 1388, 1391 (10th Cir. 1997).

      Also, we reject her argument that the Commissioner cannot first present her

filed returns and then assert that penalties should be imposed because she did not

file any returns. Her filed returns were not valid returns. See United States v.

Rickman, 638 F.2d 182, 184 (10th Cir. 1980) (deciding that return that asserts no

income is not valid return). Because she offered no reasonable justification for

failing to file valid tax returns, the § 6651(a)(1) penalties were warranted.

                                          B.

      Second, Ms. Bachman argues the Tax Court erred in denying her motion for

summary judgment because the Commissioner never identified any authority for

the tax deficiencies and therefore its deficiency calculations were arbitrary and

invalid. Based on our discussion above, we conclude the Tax Court correctly

denied her summary-judgment motion.

                                          C.

      Third, Ms. Bachman argues that the Tax Court improperly summarily

denied her motion seeking further discovery responses from the Commissioner.

                                          -6-
Based on our review of the record, we agree with the Tax Court that the

Commissioner adequately responded to her discovery request.

                                        D.

      Lastly, Ms. Bachman argues that the Tax Court’s $4000.00 sanction must

be vacated because it is arbitrary, the Commissioner did not support the motion

for a sanction, and the Tax Court stated no reason for imposing the sanction.

Additionally, she argues that the sanction violated her First Amendment right to

petition.

      The Tax Court is authorized to require a taxpayer to pay a penalty not to

exceed $25,000.00 when it appears that the taxpayer instituted the proceeding

primarily for delay and her position is frivolous or groundless. 26 U.S.C.

§ 6673(a)(1)(A)-(B). We conclude the Tax Court did not abuse its discretion in

sanctioning Ms. Bachman. See Lewis v. Comm’r, 523 F.3d 1272, 1274 (10th Cir.

2008) (reviewing imposition of sanction for abuse of discretion). The sanction

was not arbitrary. As the Commissioner argued, a sanction was appropriate

because Ms. Bachman made frivolous arguments, engaged in delaying tactics, and

failed to comply with discovery orders. Indeed, the Commissioner repeatedly

warned her during the Tax Court proceedings that her arguments were frivolous.

And the Tax Court found the sanction was proper based on her actions during that

court’s proceedings. Also we conclude that the sanction did not violate her right

to petition. See United States v. Ambort, 405 F.3d 1109, 1117 (10th Cir. 2005)

                                        -7-
(“[T]he First Amendment provides no protection for knowingly fraudulent or

frivolous claims.”); see also Larsen v. Comm’r, 765 F.2d 939, 941 (9th Cir. 1985)

(per curiam) (rejecting taxpayer’s argument that § 6673 unconstitutionally

infringes on right to petition for redress of grievances, because First Amendment

right to petition does not include right to maintain groundless litigation). 1

                                          III.

      The Commissioner moves for sanctions pursuant to 28 U.S.C. § 1912 and

Fed. R. App. P. 38, contending an $8000.00 sanction is warranted because this

appeal is frivolous. Although we have discretion to award a sanction for a

frivolous appeal such as this one, we conclude that the Commissioner has not

provided “adequate factual support for the $8,000 lump sum he requests.”

See Wheeler v. Comm’r, 521 F.3d 1289, 1291-92 (10th Cir. 2008); see also

Wheeler v. Comm’r, No. 07-9001, ___ F.3d ___, 2008 WL 2345940, at *8

(10th Cir. June 10, 2008) (discussing first Wheeler decision). We therefore deny

the Commissioner’s motion for sanctions.




1
       To the extent Ms. Bachman makes other arguments in her pro se briefs, we
reject those arguments.

                                          -8-
                                   IV.

     The Tax Court’s decision is AFFIRMED. The government’s motion for an

$8000.00 sanction is DENIED.


                                             Entered for the Court



                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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