889 F. 2d 1095 - McMillan v. Commissioner Internal Revenue Service

MEMORANDUM**

Richard McMillan appeals a tax court decision dismissing his pro se petition for failure to state a claim upon which relief could be granted and imposing damages of $5,000 pursuant to 26 U.S.C. Sec. 6673 (Supp.1987). We affirm and impose sanctions.

The tax court dismissed McMillan's petition for failure to allege sufficient facts to state a claim. MicMillan does not claim on appeal that he alleged sufficient facts to state a claim. Instead, he argues that he was denied his due process right to a hearing. The tax court did not violate McMillan's due process right by dismissing his petition without holding a hearing where his allegations were not supported by facts. Nunley v. Commissioner, 758 F.2d 372, 373 (9th Cir.1985). His legal argument that he was not a taxpayer does not entitle him to a hearing. See Codd v. Velger, 429 U.S. 624, 627-28 (1977) (due process does not require a hearing where there are no factual disputes).

The tax court did not abuse its discretion in awarding damages pursuant to section 6673. That section allows for damages where proceedings are instituted primarily for delay or where the taxpayer's position is frivolous or groundless. See Grimes v. Commissioner, 806 F.2d 1451, 1453 (9th Cir.1986) (upholding $5,000 damages for frivolous taxpayer petition).

The government requests that we impose double costs and attorney fees for a frivolous appeal. Fed.R.App.P. 38. We conclude that McMillan presents groundless arguments that have been repeatedly rejected by the courts. We impose sanctions of $1,500. See Grimes, 806 F.2d at 1454 (awarding $1,500 for frivolous tax appeal).

AFFIRMED.