Facts
- Plaintiff Donald Walker, Jr., filed a federal lawsuit against U.S. Bank and three attorneys, including claims related to a foreclosure action involving his parents’ former home. [lines="13-18"].
- The state court had previously ruled in favor of U.S. Bank in a foreclosure action and issued a judgment, which Walker sought to contest in federal court. [lines="51-55"].
- U.S. Bank filed a motion to vacate the foreclosure judgment after receiving reinstatement funds, which the state court granted, resulting in the dismissal of the foreclosure case. [lines="71-78"].
- Walker's federal complaint alleged breaches related to confidentiality and the actions of the bank and attorneys, but it lacked clear jurisdictional bases. [lines="90-91"].
- Walker failed to timely serve one attorney, Austin Decker, and did not respond to the court's order concerning the service issue. [lines="18-26"].
Issues
- Whether the federal court has subject matter jurisdiction over Walker's claims against U.S. Bank and the attorneys, given the lack of clear federal jurisdiction. [lines="148-149"].
- Whether Walker's allegations against the defendants state a viable claim for relief under Rule 12(b)(6). [lines="255-256"].
- Whether Walker's failure to serve defendant Austin Decker warrants dismissal of claims against him. [lines="340-341"].
Holdings
- The federal court lacks subject matter jurisdiction, as Walker did not meet the necessary requirements for federal question or diversity jurisdiction. [lines="246"].
- Walker's complaint fails to state a claim under Rule 12(b)(6) as the allegations are insufficient to provide a plausible basis for relief. [lines="311"].
- Claims against Austin Decker must be dismissed due to Walker's failure to timely serve the defendant. [lines="346-347"].
OPINION
Case Information
*1 Before: WARDLAW, BADE, and H.A. THOMAS, Circuit Judges.
David Gilmartin appeals pro se from the Tax Court’s order, following a bench trial, upholding the Commissioner of Internal Revenue’s determination of income tax deficiencies, and imposing a penalty under 26 U.S.C. § 6673. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo the Tax Court’s *2 legal conclusions and for clear error its factual determinations. Hardy v. Comm’r , 181 F.3d 1002, 1004 (9th Cir. 1999). We affirm.
The Tax Court properly upheld the Commissioner’s deficiency determination because the Commissioner presented “some substantive evidence” that Gilmartin failed to report income and Gilmartin did not submit any relevant evidence “showing that the deficiency was arbitrary or erroneous.” Id. at 1004-05; Grimes v. Comm’r , 806 F.2d 1451, 1453 (9th Cir. 1986) (“There can be no doubt that the tax on income is constitutional” and “income includes gain derived from capital, from labor, or from both combined” (citation and internal quotation marks omitted)); Olson v. United States , 760 F.2d 1003, 1005 (9th Cir. 1985) (“This court has repeatedly rejected the argument that wages are not income as frivolous”).
The Tax Court did not abuse its discretion by imposing against Gilmartin a $5,000 penalty under 26 U.S.C. § 6673 for maintaining frivolous positions despite the Tax Court’s warnings. See Wolf v. Comm’r , 4 F.3d 709, 716 (9th Cir. 1993) (setting forth standard of review and concluding that the Tax Court was within its discretion in imposing penalties under § 6673 against taxpayer who pursued frivolous litigation following warning).
Gilmartin’s motions for an extension of time to file a reply brief (Docket Entry Nos. 68, 70, 71) are denied as moot.
AFFIRMED.
2 22-70228
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).