Adolfo Montero v. USA


UNPUBLISHED OPINION FILED. [10-50480 Affirmed ] Judge: EGJ , Judge: CES , Judge: JWE Mandate pull date is 03/21/2011; denying as moot motion to Improve Legibility of Currently Illegible Portions of the Record on Appeal filed by Appellant Mr. Adolfo Sandor Montero [6678056-2]; granting motion for damages Rule 38 filed by Appellee USA [6667149-2] [10-50480]

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Case: 10-50480 Document: 00511362810 Page: 1 Date Filed: 01/27/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED January 27, 2011 No. 10-50480 Summary Calendar Lyle W. Cayce Clerk ADOLFO SANDOR MONTERO, Plaintiff - Appellant v. UNITED STATES OF AMERICA Defendant - Appellee Appeal from the United States District Court for the Western District of Texas, Austin USDC No. 1:08-CV-885 Before JOLLY, STEWART, and ELROD, Circuit Judges. PER CURIAM:* In 2005, Montero earned over $160,000 working for Dell Products. He filed suit against the Government in federal district court, seeking a refund of all federal taxes that Dell withheld from his pay ($27,929 in income tax and $8,104 in FICA tax). He contends that the “unprivileged private-sector remuneration” that he received from Dell does not constitute taxable wages. He * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4. Case: 10-50480 Document: 00511362810 Page: 2 Date Filed: 01/27/2011 No. 10-50480 also sought an injunction enjoining the Government from “future abuse” and an unspecified amount of money damages. The district court dismissed the complaint for lack of jurisdiction because Montero had not satisfied the jurisdictional prerequisites for filing a tax refund suit in federal court (payment of assessed tax liability in full and timely filing of an administrative claim for a refund with the Internal Revenue Service). See 28 U.S.C. 1346(a)(1); 26 U.S.C. 7422(a); Flora v. United States, 362 U.S. 145, 177 (1960). Montero argues that these jurisdictional prerequisites apply only to “taxpayers” and, therefore, do not apply to him because he is a “non-taxpayer.” These arguments are patently frivolous and devoid of any merit whatsoever. Accordingly, the judgment of the district court is in all respects AFFIRMED. Montero’s “Motion to Improve Legibility of Currently Illegible Portions of the Record on Appeal” is DENIED as moot. The Government’s motion for a lump-sum sanction of $8,000, in lieu of calculating the costs and attorney’s fees it incurred in responding to Montero’s frivolous appeal, is GRANTED. This court has approved similar awards in similar cases because it “saves the government the additional cost of calculating its expenses, and also saves the court the time and expense of reviewing the submission of costs.” Parker v. Commissioner, 117 F.3d 785, 787 (5th Cir. 1997); see also Smith v. United States, 2008 WL 5069783, at *2 (5th Cir. 2008) (unpublished) (awarding lump sum sanction of $8,000 against taxpayer for filing a frivolous appeal) Wallis v. Commissioner, 203 F. App’x 591, 594 (5th Cir. 2006) (unpublished) (same). AFFIRMED; SANCTIONS IMPOSED. 2

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