Hudson v. U.S., No. 84-1782
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before BROWNING, Chief Judge, KENNEDY and NORRIS; PER CURIAM |
| Citation | 766 F.2d 1288 |
| Docket Number | No. 84-1782 |
| Decision Date | 26 April 1985 |
| Parties | -5582, 85-2 USTC P 9575 Daniel R. HUDSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
Page 1288
v.
UNITED STATES of America, Defendant-Appellee.
Ninth Circuit.
Decided July 19, 1985.
Page 1290
Daniel R. Hudson, in pro. per.
Carleton D. Powell, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Page 1291
Before BROWNING, Chief Judge, KENNEDY and NORRIS, Circuit Judges.
PER CURIAM.
Daniel Hudson filed a 1982 tax return containing only his name, address, social security number, filing status, and number of exemptions. He responded to all other questions on the return with "Object," "None," or "0," stating that answers to these questions would "have a tendency to incriminate me of any ambiguous and false non tax related crime." The Commissioner assessed a $500 frivolous return penalty under Section 326(a) of the Tax Equity and Fiscal Responsibility Act (TEFRA), 26 U.S.C. Sec. 6702 (1982). Hudson brought this action for refund. The district court granted summary judgment for the Commissioner. We affirm.
The Commissioner did not err in rejecting appellant's fifth amendment claim and finding his return frivolous. "To invoke the fifth amendment privilege, the taxpayer must be faced with substantial hazards of self-incrimination that are real and appreciable, and must have reasonable cause to apprehend such danger." Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir.1982) (per curiam). Appellant offered no specific basis for his claim of privilege. His statement that the information requested could be used "to build a false and malicious case against" him if he had supplied false financial information to a federal agency to obtain benefits, did not constitute a " 'positive disclosure' indicating where the danger lies." McCoy v. Commissioner, 696 F.2d 1234, 1236 (9th Cir.1983) quoting United States v. Neff, 615 F.2d 1235, 1240 (9th Cir.1980).
The district court did not improperly "dismiss" the case without trial. It correctly granted a properly supported summary judgment motion. The government demonstrated that the section 6702 penalty was properly imposed and appellant was obliged to respond with evidence creating a genuine issue of a relevant fact. Fed.R.Civ.P. 56(c). He failed to do so since he offered no evidence from which it might appear that his reasons for failing to properly fill out his return were other than frivolous.
Appellant's asserted good faith is irrelevant. Section 6702 does not require the government show the taxpayer's conduct was "willful." Compare Garner v. United States, 424 U.S. 648, 663 n. 18, 96 S.Ct. 1178, 1187 n. 18, 47 L.Ed.2d 370...
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