892 F. 2d 761 - Axmann v. Ponte

Edward and Donna Axmann appeal pro se from the orders of the District Court1 for the District of Nebraska granting appellee IRS agent Michael Ponte's motion to dismiss their wrongful levy action for failure to state a claim, and denying their motion to modify or vacate judgment. We affirm.

The Axmanns filed in state court the instant action, alleging that a certain assessment levied against them by Ponte for past due federal income tax liabilities was unlawful. Ponte filed a petition for removal in federal district court, a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and a request for sanctions pursuant to Fed.R.Civ.P. 11.

After determining that removal was appropriate, the district court granted Ponte's motion to dismiss and his request for sanctions on the grounds that (1) the IRS is authorized to carry out broad responsibilities of the Secretary of Treasury for the administration of internal revenue laws; (2) the sixteenth amendment was properly ratified; (3) Ponte is immune from liability for the acts claimed in the petition; (4) the Axmanns failed to present any evidence in support of their arguments; and (5) the lawsuit was "plainly legally frivolous," and had "no basis in fact or in law and occasion[ed] nothing except harassment." The district court denied the Axmanns' motion to modify or vacate judgment. In this timely appeal, the Axmanns reassert the arguments advanced below; Ponte requests double costs and damages pursuant to Fed.R.App.P. 38.

Upon careful review, we hold that the district court's dismissal was proper, and that the Axmanns' appeal is frivolous.

Accordingly, the district court judgment is affirmed, see 8th Cir.R. 14, and Ponte's request for double costs and damages under Rule 38 is granted.