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[NOT FOR PUBLICATION]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.
__________
the

Appellant Brian Gardell appeals an order of

United States

District Court

Hampshire

approving the

magistrate

judge that

Service [IRS]

he

the District

and recommendation

comply with

summons issued pursuant

The administrative
IRS office

report

for

his

tax

liabilities

for the

years

to 26 U.S.C.

7602.

appear at the
give testimony

records relating to

1985

and

1987.

liabilities had previously been assessed against Gardell

these years and the

the

Revenue

New Hampshire, to

and to produce for examination books and

of

an Internal

summons directs Gardell to

in Portsmouth,

of New

purpose of the summons was

Tax
for

to determine

the collectability of these

asserts

that

the

liabilities.

district

court

lacked

enforce the

summons since Gardell has

Freeman and

. . .

implied
contends

that the

enforcement of

constitutional right

recommendation

Government."

the summons

. of

He also

violated his

We affirm essentially

by the magistrate judge in

dated July

to

Quasi-Contractual or

to due process.

on the grounds stated

and

the Federal

jurisdiction

the "Status . .

has no Contractual,

agreements with

On appeal, Gardell

7, 1993.

his report

We add

only the

following remarks.
First, Gardell's contention that as
contractual obligations

a "Freeman" without

to the government he

is not subject

-2-

to

the

merit.1
(7th
income

district
See
___

court's

jurisdiction is

totally

without

v. Sloan, 939
_____

F.2d 499,

500-01

United States
_____________

Cir. 1991)

(contention

that appellant

was free

from

tax because he was a "freeborn, natural individual

. . [and thus] not subject to the jurisdiction of laws of the

United
(1992);

States" is

frivolous), cert.
____

denied, 112
______

S.Ct. 940

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 . .
denied,
______
matter
summons

. is

totally without

464 U.S. 942 (1983).

over

a petition

pursuant

to

26

personal jurisdiction
of

the show

cause

United States v.
______________

to

arguable merit"),

The district court has subject

enforce

U.S.C.

an IRS

administrative

7604(a).

It acquired

over Gardell through service

order and

the petition

Bichara, 826
_______

F.2d 1037,

1987); United States v.

_____________

cert.
____

upon him

of enforcement.
1039

Miller, 609 F.2d 336, 338

______

(11th Cir.
(8th Cir.

1979).
Second,
burden

the record makes clear that the IRS has met its

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

Powell, 379 U.S.
______
States,
______
S.Ct.

as set

48 (1964).

978 F.2d 25, 26

1606 (1993).

out in

See also
___ ____

Sylvestre v.
_________

(1st Cir. 1992),

Gardell,

who

by

enforcement

an

allegation

of the summons would

court's process--"that

the good faith of

Powell, 379 U.S. at

______
in

this

regard

challenge

him and

facts,

either

which

the

that

IRS
of
the

constitute an abuse of the

had been issued

the investigation." Id.

__

before this

court

reflecting

at 27 (citing

The only arguments

district court challenge the

against

specific

or for any other purpose

58).

United
______

bears the burden

is, that the summons

for an improper purpose

on

of

v.

cert. denied, 113

____ ______

concedes that

satisfied these requirements, thereupon

showing,

United States
_____________

Gardell raised
or

before

the

liabilities which were assessed

underlie the

summons.

to an assessment of liability

However,

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

court after the payment of the

paid, district
that

tax, id.
__

7422 (until tax is

court without jurisdiction to hear allegation

tax has been erroneously

the

district

underlying assessment

enforcement of an

assessed).2

is

not a

A challenge to

valid

administrative summons,

defense to

the

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,
1991)

United States
_____________

v. Mueller,
_______

("district court

correctly

930 F.2d

10, 12

(8th Cir.

held

that [the

summoned

party]

could

not use

summons as a forum

the

proceedings to

in which to contest

underlying assessments.").
opportunity

to challenge

enforce

the validity of

Since Gardell
the

the IRS
the

was afforded

administrative summons

an

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.
375

U.S.

invalidity
there

440,
in

is "full

coercive

446,

449-50

procedure for

(1964)

may

Gilleran, 992 F.2d 232,

________

(no

enforcement

opportunity for

sanctions

See Reisman v.
___ _______

be

constitutional

of

summons since

judicial review

imposed");

before any

United States
______________

233-34 (9th Cir. 1993) ("no

or property interest protectable by due

Caplin,
______

v.

liberty

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.

-5-

See, e.g.,
___ ___

Kelly
_____

v.

United States,
_____________

789 F.2d

(imposing sanctions on appellant

was

a "natural

individual

neither asked for nor

94,

98 (1st

Cir. 1986)

who claimed that because he

and unenfranchised

freeman" who

received privileges from government he

owed

no tax); Sullivan v.
________

(1st

Cir. 1986) (similar); see also Wilcox, 848 F.2d at 1008

___ ____ ______

(appellant

contended wages

United States, 788

_____________

are

not income

F.2d 813, 816

and payment

taxes is voluntary); Casper v. Commissioner, 805

______
____________
(similar).
case.

We

agree that

of

F.2d at 906

sanctions are warranted

in this

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

bringing a frivolous appeal.

against Gardell for

Fed. R. App. P. 38.

The judgment of the district

court is affirmed.
________

costs are assessed against appellant.

____________________________________

Double
______

-6-