Sheila Ann Smith v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHEILA ANN SMITH,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 22-70051
IRS No. 1312-16L
MEMORANDUM*
On Petition for Review of an Order of the
United States Tax Court
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
Sheila Ann Smith appeals pro se from the Tax Court’s decision sustaining a
notice of federal tax lien to collect unpaid penalties for filing a frivolous tax return
for 2009, 2010, and 2011. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We
review de novo the Tax Court’s conclusions of law de novo and for clear error its
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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factual findings. DJB Holding Corp. v. Comm’r, 803 F.3d 1014, 1022 (9th Cir.
2015). We affirm.
The Tax Court properly upheld the Commissioner’s assessment of frivolous
return penalties because Smith submitted purported returns that contained
information indicating that the self-assessment of taxable income was substantially
incorrect, see 26 U.S.C. § 6702(a)(1)(B), and that were premised on frivolous
positions, see id. § 6702(a)(2)(A). See Maisano v. United States, 908 F.2d 408,
409 (9th Cir. 1990) (noting that this court has repeatedly rejected, as frivolous,
variations of the “wages are not income” argument); Olson v. United States,
760 F.2d 1003, 1005 (9th Cir. 1985); see also Moore v. United States, 36 F.4th
930, 935 (9th Cir. 2022), amended on denial of reh’g en banc, 53 F.4th 507 (9th
Cir. 2022) (recognizing that Sixteenth Amendment exempts from the
apportionment requirement the expansive category of “incomes, from whatever
source derived”); United States v. King Mountain Tobacco Co., Inc., 899 F.3d 954,
962 (9th Cir. 2018) (distinguishing income or property tax from an excise tax).
We do not consider issues not specifically raised and argued in the opening
brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Smith’s request to withdraw her motion to vacate (Docket Entry No. 30) is
granted. Smith’s motion to vacate (Docket Entry No. 23) is deemed withdrawn.
AFFIRMED.

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