Lewis v. C.I.R.
| Decision Date | 29 April 2008 |
| Docket Number | No. 07-9006.,07-9006. |
| Citation | 523 F.3d 1272 |
| Parties | Scott A. LEWIS, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Scott A. Lewis, pro se, Denver, CO.
Richard T. Morrison, Acting Assistant Attorney General, Francesca U. Tamami, Attorney, and Patrick J. Urda, Attorney, Tax Division, Department of Justice, Washington, D.C.
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
Scott A. Lewis failed to pay federal income taxes for the year 2003. The Commissioner of Internal Revenue (CIR) assessed Lewis for his deficiency and charged him with additional penalties for failure to file a timely return, failure to timely pay the amount of tax shown on a federal income tax return, and underpayment of estimated income tax.
Proceeding pro se1 in the Tax Court Lewis challenged the CIR's assessments by arguing that IRS Form 1040 did not comply with the Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501, et seq. (PRA). Specifically, he argued Form 1040 violated the PRA because it did not have a proper Office of Management and Budget (OMB) control number, as required by the Act.
The Tax Court rejected this argument, as do we. Lewis timely appealed the Tax Court's decision, raising the same PRA arguments. Having jurisdiction under 26 U.S.C. § 7482(a)(1), we AFFIRM the Tax Court's decision.
After Lewis failed to pay federal income taxes for the year 2003, the CIR issued Lewis a notice of deficiency in the amount of $9,619. The CIR calculated Lewis's deficiency by using a substitute return for the year 2003, in accordance with 26 U.S.C. § 6020(b). The CIR based the deficiency on the amount of Lewis's income that had been reported to the IRS by third parties and on the allowance of a standard deduction and one personal exemption.
Lewis filed a petition for redetermination in the Tax Court, claiming the CIR violated the PRA when assessing his tax deficiency and penalties. Lewis argued Form 1040 did not comply with the PRA because "the OMB #1545-0074 is both expired and invalid," and he therefore cannot be assessed penalties for failure to comply with the form. R. Doc. 1, ¶ 17; see 44 U.S.C. § 3512. The PRA has a public liability provision stating, "[n]otwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information . . . if the collection of information does not display a valid control number." 44 U.S.C. § 3512(a). Because Lewis contends Form 1040 violates the PRA, he claims the PRA protects him against penalties assessed for failure to provide information on a Form 1040. The Tax Court struck Lewis's PRA arguments as frivolous.
After a bench trial, the Tax Court found Lewis liable for a tax deficiency of $9,619 for tax year 2003 as well as penalties of $2,164.23 under § 6651(a)(1) for failure to file a tax return, and $248.21 under § 6654(a) for failure to pay estimated income tax. The court ruled in Lewis's favor on the CIR's assessment under § 6651(a)(2) for failure to pay the amount shown on a federal income tax return when due, because the CIR presented insufficient evidence on that claim. The Tax Court also sanctioned Lewis $2,000 under § 6673 for making frivolous arguments.
Lewis timely appealed to this court, raising the PRA arguments.2
We review the Tax Court's conclusions of law de novo and its factual findings for clear error. Cox v. C.I.R., 514 F.3d 1119, 1123 (10th Cir.2008). Tax Court sanctions are reviewed for an abuse of discretion. Fox v. Commissioner, 969 F.2d 951, 953 (10th Cir.1992). Challenging both the deficiency and sanctions, Lewis argues the CIR violated the PRA by not displaying a valid OMB control number, including an expiration date, on Form 1040. First we look to the deficiency and then review the imposition of sanctions.
The PRA was passed in 1980 with the hope of making paperwork requirements on small businesses and individuals less burdensome. See United States v. Dawes, 951 F.2d 1189, 1191 (10th Cir.1991). Congress substantially amended the PRA in 1995. The current version of the PRA includes a provision limiting personal liability for failure to comply with any collection of information when (1) the information collection device does not include a "valid control number assigned by the [OMB]," or when (2) "the agency fails to inform the person . . . that such person is not required to respond to the collection of information unless it displays a valid control number." 44 U.S.C. § 3512.
Lewis contends he cannot be penalized for failing to file a Form 1040 for his 2003 taxes for three reasons: (1) "the 1040 has displayed the same, worn-out, OMB number since January, 1981, OMB #1545-0074 . . . [s]ince the number is to expire three [] years after it is issued, the number 1545-0074 would have expired after its usage in 1983," Br. at 19, (2) Form 1040 "does not display any appropriate expiration date," Br. at 20, and (3) Form 1040 does not include disclosure information as required by the PRA. The Tax Court found Lewis's arguments to be frivolous, addressed none of the arguments, and imposed sanctions.
We reach Lewis's specific PRA arguments to clarify that Form 1040 complies with the PRA. Prompted in part because these PRA arguments continue to be raised,3 this discussion clarifies how the PRA and the Tenth Circuit precedent discussing the PRA do not support any viable claims against the imposition of tax liability.4 Tax forms, such as Form 1040, are information collection requests within the meaning of the PRA. Dole v. United Steelworkers of America, 494 U.S. 26, 33, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) () (internal citation omitted); see also United States v. Collins, 920 F.2d 619, 630 n. 12 (10th Cir.1990) (same). Lewis correctly highlights how the PRA applies to tax forms, such as Form 1040.5
Lewis focuses his PRA contentions on the required display of a valid control number on all information collection devices. See § 3506(c)(1)(B)(i) (). Lewis concedes Form 1040 displays an OMB control number, and he does not challenge the IRS instruction booklet which accompanies Form 1040.6 Rather, Lewis focuses his arguments on the validity of the control number that is displayed, the lack of an expiration date, and the lack of disclosure material printed on Form 1040.
While inventive, these arguments are unavailing.
(1) Form 1040 displays a valid OMB control number
Lewis points out how Form 1040 has used the same OMB control number since 1981 (# 1545-0074), and claims the number expires three "years after it is issued," so the number on the form would have expired after its usage in 1983. Br. at 19. He fails to point out, however, any evidence the OMB control number has expired. As the Seventh Circuit recently explained,
That this number [OMB # 1545-0074] has been constant since 1981 does not imply that OMB has shirked its duty. Section 3507 requires periodic review, not a periodic change in control numbers. . . . The control number on Form 1040 appears on OMB's web site as a current, valid number; if this is wrong, it takes more than a lawyer's say-so to establish the proposition.
United States v. Patridge, 507 F.3d 1092, 1094-95 (7th Cir.2007).7 In fact, the agency has complied with the PRA by periodically updating the expiration date applicable to IRS Form 1040.8
Accordingly, we conclude Form 1040 displays a valid control number.
(2) An expiration date does not need to be printed on Form 1040
Next, Lewis contends the PRA requires the printing of an expiration date on Form 1040. However, according to the statute, an expiration date is only required on a form if appropriate. § 3506(c)(1)(B) () (emphasis added). As the OMB explains in its rule making notice in the Federal Register,
[The] OMB recognizes . . . that under some circumstances display of the expiration date would not serve any useful purpose and might instead create confusion and unnecessary cost to the public. An example would be an annually revised Form, such as a tax form, which applies to transactions within a particular year but which may be filed during many years. The regulation provides for appropriate treatment of such exceptional cases.
Controlling Paperwork Burdens on the Public, 48 Fed.Reg. 13666, 13676 (March 31, 1983) (codified at 5 C.F.R. § 1320) (emphasis added); see also United States v. Burdett, 768 F.Supp. 409, 411-12 (E.D.N.Y.1991). While there must be an expiration date for the OMB control number the PRA does not require the expiration date to be printed on all information collection devices.
In support of his expiration date argument Lewis invokes United States v. Collins, 920 F.2d 619 (10th Cir.1990). But Collins was decided before the PRA was amended in 1995 and is ultimately unpersuasive. In Collins, the defendant challenged the omission of an expiration date on Form 1040, while conceding the presence of OMB control numbers on the form, much like Lewis does. After determining that no expiration date is required by the 1980 version of the PRA, we concluded the tax-year designation printed on Form 1040 would satisfy any expiration date requirement. Collins does not support a requirement for printing an expiration date under the 1995 version of the PRA, it merely discussed how any potential expiration date requirement under the 1980 PRA could be satisfied. We hold the current version of the PRA does not require any expiration date to be printed on Form 1040.
(3) Form 1040 need not include PRA disclosures
Finally, Lewis argues...
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