Collett, Wallace T. et al. v. U.S.

Christopher Barnes, U.S. Atty., Sally Whitaker, Cincinnati, Ohio, Glenn L. Archer, Jr., Lead Counsel, Michael L. Paup, Tax Div., Dept. of Justice, Washington, D.C., for defendant-appellee.

Before MARTIN and CONTIE, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record and the briefs filed by the respective parties, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The appellants are appealing the summary judgment which sustained the imposition of a $500.00 penalty levied pursuant to 26 U.S.C. § 6702. For the tax year 1982, the appellants submitted a 1040 form prepared by Price Waterhouse. The typed figures on the form indicated the Colletts owed $5,684.00 in taxes. That figure, however, was marked out and $1,697.00 was penciled in as the amount owed the Colletts as a refund. A letter attached to the return explained that they reduced their tax liability by the percentage of the federal budget dedicated to military use. The Internal Revenue Service imposed the aforementioned fine, and this action was filed in district court to challenge that fine. The issues on appeal are whether the return is within the purview of § 6702 and whether the act impermissibly restricts the appellants' first amendment right to free expression.

26 U.S.C. § 6702 states:

§ 6702. Frivolous income tax return

In addition, the deduction is due to a position that is frivolous. The war tax deduction was specifically mentioned in the legislative history of the act as a frivolous position. 1982 U.S.Code Cong. and Ad.News 1023, 1024. It is well documented that such a deduction is not permitted. Graves v. Commissioner, 579 F.2d 392 (6th Cir. 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1423, 59 L.Ed.2d 634 (1979); Lull v. Commissioner, 602 F.2d 1166 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 643 (1980); First v. Commissioner, 547 F.2d 45 (7th Cir. 1976). A religious belief or moral belief in conflict with the payment of taxes affords no basis for resisting the tax. United States v. Lee, 455 U.S. 252, 260, 102 S.Ct. 1051, 1056, 71 L.Ed.2d 127 (1982). § 6702(a)(2)(A) is applicable, and the penalty was properly assessed.

Finally, the appellants' contention that § 6702 runs afoul of the first amendment is unconvincing. The act does not penalize protest communication as there are many other ways one may express the protest. Scull v. United States, 585 F.Supp. 956 (E.D.Va. 1984). "The penalty will not apply if the tax payer shows the correct tax but refuses to pay the tax." 1982 U.S.Code Cong. and Ad.News at 1024. Finally, the maintenance and viability of the tax system is a sufficiently important governmental interest to justify incidental regulation upon speech and non-speech communication. United States v. Lee, supra; Franklet v. United States, 578 F.Supp. 1552 (N.D.Cal. 1984), aff'd, 761 F.2d 529 (9th Cir. 1985); Welch v. United States, 750 F.2d 1101 (1st Cir. 1985); Kahn v. United States, supra.

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.