OpenJurist

917 F2d 28 Moffat Vi v. Commissioner of Internal Revenue

917 F.2d 28

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

John Elder MOFFAT VI, Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 90-70046.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 25, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

John Elder Moffat VI appeals pro se the Tax Court's order dismissing of his petition for redetermination of deficiencies and additions to tax assessed by the Commissioner of Internal Revenue (CIR) for the 1986 tax year. The Tax Court dismissed Moffat's petition for failure to prosecute pursuant to Tax Court Rule 123(b). We review for an abuse of discretion, see Noli v. Commissioner, 860 F.2d 1521, 1527 (9th Cir.1988), and affirm. In addition, we find Moffat's appeal to be frivolous and impose $500 as a sanction pursuant to Fed.R.App.P. 38 and 28 U.S.C. Sec. 1912.

3

* Dismissal

4

Under Rule 123(b) of the Tax Court Rules of Practice and Procedure, the Tax Court may dismiss a petition for failure to prosecute. See Tax Ct.R. 123(b). Moreover, pro se litigants challenging the CIR's assessments must abide by the Tax Court's rules. See Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir.1987); Carter v. Commissioner, 784 F.2d 1006, 1008-09 (9th Cir.1986).

5

The CIR's determinations of deficiencies and additions to tax are presumptively correct. See, e.g., Baxter v. Commissioner, 816 F.2d 493, 495 (9th Cir.1987). Thus the taxpayer bears the burden of producing evidence showing that the CIR's determination is incorrect. Id.

6

Pursuant to Tax Court Rule 140(a), the taxpayer initially designates "the place at which he would prefer the trial to be held." See Tax Ct.R. 140(a). Either party, however, can motion the Tax Court for a "change in the designation of the place of trial." See Tax Ct.R. 140(c).

7

Moffat designated Los Angeles, California as the place of trial. See Tax Ct.R. 140(a). The CIR then filed a motion to change the place of trial to Phoenix, Arizona. See Tax Ct.R. 140(c). In support of its motion, the CIR noted that Moffat had listed a post office box in Flagstaff, Arizona as his address on his most recent income tax return and on his petition with the Tax Court. In addition, the CIR argued that all witnesses which the CIR intended to call at trial were located in Arizona. Specifically, the CIR anticipated calling, as a witness, a representative from the State of Arizona-Finance Division. The CIR stated that the witness was necessary because Moffat had failed to provide information regarding income he allegedly received from the State of Arizona-Finance Division.

8

Moffat objected to the CIR's motion to change the location of the trial arguing that he had not received any wages from the State of Arizona-Finance Division. Moffat also claimed that he would be unable to obtain a fair trial in Arizona because the Tax Court in Arizona would be under the control of the CIR's agents who were part of an "Aryan Nations conspiracy." Moffat concluded that he would "not be present at or cooperate with any proceedings not conducted in either Los Angeles, California or Washington D.C."

9

The Tax Court granted the CIR's motion and scheduled the trial for December 4, 1989 in Phoenix, Arizona. Moffat was notified of the trial date and warned that his failure to appear could result in the dismissal of his case and a judgment against him.

10

On November 21, 1989, Moffat wrote to the CIR stating that he would "not make [himself] available for further harassment and persecution by the neo-Nazi activities of the District of Arizona Internal Revenue Service on 4 December 1989 in U.S. Tax Court."

11

On December 4, 1989, Moffat failed to appear, and the CIR moved to dismiss for failure to prosecute. The Tax Court granted the CIR's motion and entered a decision in the CIR's favor.

12

We find that the tax court did not abuse its discretion in granting the CIR's motion to change the location of the trial from Los Angeles to Arizona. See Tax Ct.R. 140(c).

13

Accordingly, because Moffat failed to appear at the December 4, 1989 trial or prosecute his case properly, the Tax Court did not abuse its discretion when it dismissed Moffat's petition under Rule 123(b). See, e.g., Edelson, 829 F.2d at 831. Moreover, because it was Moffat's burden to show that the CIR's determination was incorrect, the Tax Court did not abuse its discretion by finding in favor of the CIR. See Baxter, 816 F.2d at 495.

II

Sanctions

14

The CIR requests sanctions against Moffat for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed.R.App.P. 38; 28 U.S.C. Sec. 1912; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir.1989) ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted).

15

Moffat's contentions are wholly without merit. Accordingly, we impose $500 damages as a sanction.

16

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3