*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60069

Summary Calendar

 

ROBERT BAKER; TASHINA BAKER,

Petitioners-Appellants,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

 

Appeal from a Decision of the

United States Tax Court

(5931-95 & 5932-95)

 

September 9, 1996

Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*

PER CURIAM:

Petitioners-appellants, Robert K. Baker and Tashina Baker,

husband and wife (Taxpayers), appeal the decision of the Tax Court,

which dismissed their petitions for redeterminations of tax

deficiencies and additional tax assessed against them by appellee,

the Commissioner of Internal Revenue. The Tax Court also assessed
2

each of the Taxpayers a $500 penalty under 26 U.S.C. § 6673(a)(1)

(proceedings instituted primarily for delay or where taxpayer’s

position is frivolous or groundless). We affirm.

After filing their initial petitions with the Tax Court,

Taxpayers filed amended petitions, the Commissioner then filed

motions to dismiss for failure to state a claim, and, thereafter,

the Tax Court on July 19, 1995, ordered the Taxpayers to file

proper second amended petitions in conformity with the requirements

of Tax Court Rule 34 and setting forth specifically each error

allegedly made by the Commissioner in the determination of the

deficiencies and separate statements of fact upon which the

assignments of error are based. Taxpayers filed second amended

petitions and other documents. The Commissioner’s motion to

dismiss was heard August 16, 1995, and the Commissioner appeared

through counsel, but neither taxpayer appeared. On October 16,

1995, the Tax Court issued its memorandum of opinion. The Tax

Court dismissed the petitions. It concluded that the Taxpayers’

pleadings failed to comply with the court’s July 19 order and with

Rule 34(b)(4) and (5): “There is neither assignment of error nor

allegation of fact in support of any justiciable claim. Rather,

there is nothing but tax protestor rhetoric and legalistic

gibberish.” To the extent that any specific contentions could be

made out, they were that the Commissioner could not assess a

deficiency because the Taxpayers had not filed a return, and,

arguably, because the Commissioner had not prepared a return for
3

the Taxpayers, and because wages are not income. The Tax Court

determined that both of these contentions were frivolous. We

agree. Schiff v. United States, 919 F.2d 830, 832-33 (2d Cir.

1990), cert. denied, 501 U.S. 1238 (1991); Stelly v. Com’r, 804

F.2d 868, 869-70 (5th Cir. 1986), cert. denied, 480 U.S. 907

(1987). See also Moore v. Com’r, 722 F.2d 193, 196 (5th Cir.

1984). We also agree with the Tax Court that Taxpayers’ pleadings

below were essentially incomprehensible legal gibberish, and that

dismissal for noncompliance with Rule 34 was proper. Sochia v.

Com’r, 23 F.3d 941 (5th Cir. 1994). Further, the Tax Court clearly

did not abuse its discretion in making the $500 assessments under

section 6673(a)(1). See Sandovall v. Com’r, 898 F.2d 455, 459 (5th

Cir. 1990).

On appeal to this Court, Taxpayers raise other arguments.

They contend that there was no genuine determination of deficiency

under 26 U.S.C. § 6212(a) because the Commissioner relied on Bureau

of Labor Statistics and the Consumer Price Index, in addition to at

least one 1099, in calculating unreported income, and that, in any

event, the notice of deficiency was arbitrary and erroneous, so was

not entitled to the presumption of correctness. See Portillo v.

Com’r, 932 F.2d 1128 (5th Cir. 1991); Portillo v. Com’r, 988 F.2d

27 (5th Cir. 1993); Senter v. Com’r, T.C. Memo. 1995-311, 70 T.C.M.

(CCH) 54, 1995 WL 412147 (U.S. Tax Ct.) (1995). But see Moore v.

Com’r, 722 F.2d 193 at 196 (5th Cir. 1984). We decline to reach
1We note that the issue before the Tax Court in this case was

one of proper pleading, not one of the burden of proof at trial,

which is the issue addressed in Portillo and Senter.

4

either of these contentions as they were not raised in any

intelligible way below.1 See F.D.I.C. v. Mijalis, 15 F.3d 1314,

1317 (5th Cir. 1994) (“the litigant must press and not merely

intimate the argument” in the lower court in order to preserve it);

Matter of Fairchild Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir.

1993); Moore at 196. As we have said, “[a] district court and

opposing parties are not required to forever sift through such

pleadings after the plaintiff has been given notice of the pleading

requirements of his case.” Old Time Enterprises v. International

Coffee Corp., 862 F.2d 1213, 1219 (5th Cir. 1989).

Appellants have failed to demonstrate any reversible error.

The judgment of the Tax Court is accordingly

AFFIRMED.