789 F.2d 94 (1st Cir. 1986), 85-1716, Kelly v. United States

Docket Nº:85-1716, 85-1717.
Citation:789 F.2d 94
Party Name:Susan B. KELLY, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. James P. KELLY, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
Case Date:May 02, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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789 F.2d 94 (1st Cir. 1986)

Susan B. KELLY, Plaintiff, Appellant,

v.

UNITED STATES of America, Defendant, Appellee.

James P. KELLY, Plaintiff, Appellant,

v.

UNITED STATES of America, Defendant, Appellee.

Nos. 85-1716, 85-1717.

United States Court of Appeals, First Circuit

May 2, 1986

Submitted Feb. 6, 1986.

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Susan B. Kelly and James P. Kelly, pro se.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Gary R. Allen, Tax Div., Dept. of Justice, Washington, D.C., and Richard V. Wiebusch, U.S. Atty., Concord, N.H., on brief, for defendant, appellee.

Before COFFIN, BOWNES, and TORRUELLA, Circuit Judges.

PER CURIAM.

In 1983, plaintiffs Susan Kelly and James Kelly each filed with the Internal Revenue Service (IRS) a "Request for Refund of Income Tax", seeking a refund of all taxes paid in taxable year 1982. Each plaintiff stated that he was a "natural individual" and "unenfranchised freeman" who "neither requested, obtained, nor exercised any privilege from an agency of government...." Each attached a Form 1040, a Schedule C (Profit or (Loss) From Business or Profession), and Forms W-2. Neither plaintiff signed the Form 1040; rather, each wrote "For Info Only--Not a Return" on the signature line. Neither Form 1040 listed any amount for wages, salaries or tips, even though the Forms W-2 indicated that James had received more than $25,000, and Susan had received more than $18,000 in "wages, tips and other compensation." The word "Incorrect" was written on each Form W-2 with no further explanation on the forms.

On the Schedules C, each plaintiff listed as "gross receipts or sales" of his purported business activity of "Labor Contractor" an amount almost identical to the amount listed as wages on the Forms W-2. In each case, the gross receipts were offset by adjustments for "cost of labor" (again, an amount almost identical to the amount of wages listed on the Forms W-2) and purchases.

The IRS assessed a $500 penalty against each plaintiff pursuant to 26 U.S.C. Sec. 6702, which authorizes imposition of a civil penalty for the filing of a frivolous tax return. Each plaintiff paid 15 percent of the penalty and requested a refund of that payment from the IRS. Both requests were denied. Plaintiffs then filed separate suits in district court against the United States (defendant),

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seeking refunds of their partial payments of the penalty.

In each case, defendant filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), and a motion for an award of costs and attorneys' fees pursuant to Fed.R.Civ.P. 11. On May 28, 1985, the district court entered judgment dismissing Susan Kelly's complaint. On July 5, 1985, judgment entered dismissing James Kelly's complaint. In a separate order entered on July 19, 1985, the district court granted defendant's motion for costs and attorneys' fees in both cases, and ordered defendant to submit the amount of fees and costs incurred. Plaintiffs filed a joint notice of appeal from the July 19 order, and their appeals were consolidated.

As an initial matter, defendant argues that this court lacks jurisdiction over the appeals because the order appealed from (the July 19 order) allegedly is not final. That order granted defendant's motion for an award of costs and attorneys' fees, but did not determine the amount of the award. While we doubt that the July 19 order is final, 1 we note that neither plaintiff has raised any issue on appeal concerning the district court's award of costs and attorneys' fees to defendant; rather, both plaintiffs, who are pro se, have challenged only the dismissal of their respective complaints. Although plaintiffs stated in their Statements of Issues on Appeal that they alleged that the district court erred in granting the award of costs and attorneys' fees, they also alleged that the district court erred in granting the motions to dismiss. In addition, in their appellate briefs both plaintiffs mistakenly stated that the district court granted defendant's motions to dismiss in the July 19 order. They also stated that they filed a notice of appeal "from the judgment from the 'order of dismissal.' " Neither plaintiff mentioned in his brief the order awarding costs and fees. Thus, plaintiffs apparently intended to appeal from the judgments dismissing their complaints, 2 which appear to be final and appealable. See, e.g., Morgan v. Union Metal Manufacturing, 757 F.2d 792 (6th Cir.1985). Giving plaintiffs the benefit of the doubt, we treat their appeals as being from the judgments dismissing their complaints. 3

Assuming plaintiffs intended to appeal from the dismissals of their complaints, we next consider whether their appeals were timely. Judgment dismissing Susan's complaint was entered on May 28. However, she did not file a notice of appeal until August 2, which was beyond the 60 day period required under Fed.R.App.P. 4(a)(1). 4 Therefore, this court lacks jurisdiction to review the dismissal of her complaint. 5 See Morgan, 757 F.2d at 794-95.

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Judgment dismissing James's complaint was entered on July 5; his notice of appeal was filed on August 2, which was within the required 60 day period. Therefore, his appeal from the dismissal of his complaint is timely, and we have jurisdiction to review the dismissal.

In challenging the dismissal of his complaint, James argues that he did not file a "purported return" within the meaning of section 6702. 6 We disagree. James requested a full refund of taxes withheld from wages in 1982. A taxpayer cannot obtain such a refund without first filing a return. 26 C.F.R. Sec. 301.6402-3(a)(1) (1985). In addition, with his request for a refund James submitted a Form 1040, a Schedule C, and a Form W-2. Under these circumstances, we believe the...

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