* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-60625

Summary Calendar

 

DREW ALLEN RAYNER, 

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA; ET AL,

Defendants

UNITED STATES OF AMERICA,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:99-CV-272-GR

--------------------

March 29, 2001

Before SMITH, BENAVIDES, and DENNIS Circuit Judges.

PER CURIAM:*

Drew Allen Rayner appeals from district court orders (1)

dismissing his claims against the United States, the Internal

Revenue Service (IRS) and various IRS officials seeking an income

tax refund and (2) denying his related request for a temporary

restraining order (TRO) to prevent IRS collection activities. 

Because Rayner’s requests are patently frivolous, we AFFIRM the

judgments of the district court.
2

On April 15, 1998, Rayner filed a Form 1040 federal income

tax return for the taxable year 1997. In that return, Rayner

reported that he had earned no income. In an attached letter,

Rayner explained his belief that income “can only be a derivative

of corporate activity.” Moreover, he stated that no tax had been

“assessed” against him. Consequently, Rayner maintained that he

was entitled to a full refund of the $6,237 that had been

withheld for taxes during the course of 1997. In September 1998,

the IRS notified Rayner that he had filed a “frivolous return”

for 1997 and that he had 30 days to correct it to avoid a

“frivolous return penalty.” Rayner did not respond to this

letter. On January 11, 1999, the IRS assessed a $500 penalty

against Rayner for filing a frivolous income tax return. 

Subsequently, the IRS prepared a substitute federal income tax

return, then issued a notice of deficiency to Rayner. Though

Rayner apparently disagreed with the deficiency determination, he

did not petition the Tax Court for a recalculation. 

Proceeding pro se, Rayner filed the present suit on July 8,

1999 asserting his entitlement to a refund of the taxes collected

from him, because no taxes had been properly assessed against

him. Rayner later filed a Rule 65(b) TRO motion seeking to

prevent the IRS from collecting any fines assessed against him. 

On August 16, the IRS made an assessment against Rayner for

$10,966, then informed Rayner of his $4,729 tax balance for 1997.

In December 1999, the district court denied Rayner’s request

for a TRO after finding that Rayner “failed to offer any argument

or evidence to show that the government is unlikely to prevail on
3

the merits under any circumstances.” The next month the

district court dismissed Rayner’s action against the IRS and

individual IRS officers pursuant to Rule 12(b)(2). The district

court dismissed Rayner’s remaining claim against the United

States pursuant to Rule 12(b)(1) and (b)(6) in June of 2000. The

court concluded that it lacked subject matter jurisdiction over

the suit because Rayner failed to completely pay the taxes

assessed against him. Alternatively, the court held that

dismissal pursuant to 12(b)(6) was proper because Rayner’s claim

that no taxes had been assessed against him had no legal basis

and was, in any event, rendered moot by the August 16, 1999

assessment issued by the IRS. 

Rayner’s appeal is completely devoid of relevant legal

authority and, therefore, patently frivolous. See Olympia Co.,

Inc. v. Celotex Corp., 771 F.2d 888, 893 (5th Cir.1985) (stating

that a "frivolous appeal is one which involves legal points not

arguable on the merits") (citation omitted), cert. denied, 493

U.S. 818, 110 S.Ct. 73, 107 L.Ed.2d 39 (1989). At the bottom of

Rayner’s claim for a tax refund is his “strong belief” that he

had no taxable income in 1997. Yet, Rayner has failed to provide

a single comprehensible legal argument in support of this belief

or the points of error raised in this appeal. 

In light of this complete absence of authority, the district

court properly dismissed Rayner’s claims against the IRS and

individual defendants pursuant to Rule 12(b)(2). See 26 U.S.C. §

7422(f)(1)(explaining that a refund suit “may be maintained only

against the United States and not against any officer or employee
4

of the United States (or former officer or employee) or his

personal representative”). The district court also did not err

in dismissing Rayner’s claim against the United States for lack

of jurisdiction, see Flora v. United States, 362 U.S. 145, 177

(1960) (requiring “full payment of the [tax] assessment before an

income tax refund suit can be maintained in a Federal District

Court.”); Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir.

1994), and for failure to state a claim on which relief can be

granted. See In re Swift, 129 F.3d 792, 799 n.41 (5th Cir.

1997). As to Rayner’s TRO request, the district court could have

abused its discretion only by granting relief since Rayner

provided absolutely no legal basis for successfully obtaining a

refund of taxes paid. See FED. R. CIV. PROC. 65(b). Though Rayner

does not raise the magistrate’s decisions to stay all discovery

as an issue on appeal, we note for the sake of completeness that

neither the district court nor the magistrate judge abused its

discretion in this regard.

Rayner’s appeal surpasses mere frivolity and registers an

extraordinary score on the appellate scale of vexation. Mr.

Rayner is given notice that future frivolous appeals will be

subject to the full panoply of sanctions authorized by Federal

Rule of Appellate Procedure 38. We encourage the government to

consider moving for such sanctions if faced with frivolous

actions like this one in the future.

AFFIRMED.