856 F. 2d 193 - Bush v. Commissioner of Internal Revenue

Before NATHANIEL R. JONES and RYAN, Circuit Judges, and THOMAS G. HULL, Chief District Judge.*

Petitioner, Christopher J. Bush, appeals a decision of the United States Tax Court which upheld respondent's determination of deficiency in regard to his tax liability for the year 1983. Petitioner now moves for leave to proceed in forma pauperis. Upon review of the record and the brief submitted by petitioner, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Petitioner filed a petition for judicial review of a notice of deficiency by respondent in regard to his income taxes for the year 1983 in the United States Tax Court. In support of the petition, he generally maintained that respondent improperly characterized the funds which he received in consequence of his settlement of an unfair labor practices claim as compensation for back wages which must be included in gross income. After an evidentiary hearing at which both parties were permitted to present testimony as well as documentary evidence, the tax court agreed with respondent's assessment and specifically found that the settlement proceeds did represent back pay subject to federal income taxation. Accordingly, the tax court upheld respondent's determination of deficiency. This appeal ensued.

Petitioner's chief argument on appeal is that the tax court erred in finding that the monies which he received in consequence of his unfair labor practices claim constituted an award of back wages rather than unemployment compensation. Such a matter is a question of fact and the scope of this court's review on appeal is therefore governed by the clearly erroneous rule. Wolfson v. Commissioner, 651 F.2d 1228, 1230 (6th Cir.1981). Review of the record demonstrates that the tax court's findings are supported by ample evidence, including petitioner's own testimony, which establishes that the monies petitioner received constituted back wages. Accordingly, the tax court did not err in upholding respondent's determination of petitioner's additional tax liability. Furthermore, this court has considered petitioner's remaining allegations of error and has determined that they are without merit.

Accordingly, the motion for leave to proceed in forma pauperis is hereby granted and the decision of the tax court entered April 5, 1988, is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.