Joseph Bascom and Ann Pettis-Bascom, Petitioners-Appellants, v. Commissioner of Internal Revenue, Respondent-Appellee. , UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, SUMMARY ORDER; NO. 05-0604-ag, June 2, 2006

Joseph Bascom and Ann Pettis-Bascom, Petitioners-Appellants, v. Commissioner of Internal Revenue, Respondent-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER; NO. 05-0604-ag

June 2, 2006

Unpublished Opinion

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 1st day of June two thousand and six.

PRESENT:

HON. THOMAS J. MESKILL,

HON. JON O. NEWMAN,

HON. BARRINGTON D. PARKER, JR.,

Circuit Judges.

For Petitioners-Appellants:

Joseph Bascom and Ann Pettis-Bascom, pro se .

Pittsford, NY

For Respondent-Appellee:

Eileen J. O'Connor, Assistant Attorney General, Bruce R. Ellisen and Robert J. Branman, Attorneys, Tax Division, Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the district court's judgment be, and it hereby is, AFFIRMED.

Joseph Bascom and Ann Pettis-Bascom, pro se , appeal the decision of the United States Tax Court finding that, as a result of their failure to file tax returns and pay taxes from 1996 to 2000, they had a deficiency of several thousand dollars and owed several thousand dollars more in penalties pursuant to Internal Revenue Code ("IRC") ╖╖ 6651(a)(1) and 6654(a). They also argue that the Tax Court erred in sanctioning Joseph Bascom $7,500 pursuant to IRC ╖ 6673 because his claims were frivolous. We assume the parties' familiarity with the facts and issues on appeal.

This Court reviews the Tax Court's factual findings under a deferential standard and will reverse only if the Tax Court clearly erred in making its findings. See Andrew Crispo Gallery, Inc. v. Comm'r , 16 F.3d 1336, 1340-41 (2d Cir. 1994). A notice of tax deficiency carries a presumption of correctness that requires the taxpayer to demonstrate that the deficiency is incorrect. See id. at 1341. The imposition of sanctions under ╖ 6673 is reviewed for abuse of discretion. See Burke v. Comm'r , 929 F.2d 110, 115-16 (2d Cir. 1991).

In the present case, the Tax Court correctly upheld the Commissioner's deficiency determinations. As noted by the Tax Court, the Bascoms did not challenge the Commissioner's calculations, and, in fact, stipulated to them. Thus, the Tax Court correctly found that the deficiency determinations should be sustained.

Additionally, the Tax Court did not abuse its discretion by imposing sanctions upon Joseph Bascom for advancing a frivolous argument. Section 6673 provides that the Tax Court may impose sanctions where it finds that "proceedings before it have been instituted or maintained by the taxpayer primarily for delay," or where "the taxpayer's position in such proceeding is frivolous or groundless." 26 U.S.C.A. ╖ 6673 (a)(1)(A)-(B). In this case, the Tax Court correctly noted that the claim that income tax was an excise tax had been consistently rejected and was frivolous. See Cabirac v. Commissioner , 120 T.C. 163, 167 (2003).

We have considered all other arguments and find them to be without merit.

For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.

FOR THE COURT:

Roseann B. MacKechnie, Clerk

By: _____________________

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