FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 30, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10283

Non-Argument Calendar

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D. C. Docket No. 07-00229-CV-FTM-34-DNF

UNITED STATES OF AMERICA, 

Petitioner-Appellee, 

versus 

ROBERT S. MORSE, 

Respondent-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 30, 2008)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Robert S. Morse, a taxpayer proceeding pro se, appeals the district court’s
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grant of a petition to enforce an IRS summons pursuant to 26 U.S.C. §§ 7402(b)

and 7604(a). Morse contends that the district court erred in granting the

government’s petition to enforce an IRS summons to provide testimony and

produce documents in order to assess his tax liability. The government responds

that Morse’s arguments are frivolous and seeks to impose sanctions on Morse. 

I.

Morse contends that the district court clearly erred by granting the

government’s petition to enforce an IRS summons. He argues that the IRS did not

have a legitimate purpose in seeking the summons and that the IRS was without

authority to seek to enforce the summons because the authority only extended to

investigations where the taxpayer failed to file a tax return. “An order enforcing an

IRS summons will not be reversed unless clearly erroneous.” United States v.

Medlin, 986 F.2d 463, 466 (11th Cir. 1993). 

Under the Sixteenth Amendment, “Congress shall have power to lay and

collect taxes on incomes, from whatever source derived, without apportionment

among the several states, and without regard to any census or enumeration.” U.S.

Const. Amend. XVI. The IRS is charged with administering and enforcing

Congress’ power to lay and collect taxes, including on income from whatever

source derived. Madison v. United States, 758 F.2d 573, 574 (11th Cir. 1985).
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The IRS is authorized to issue a summons for the purpose of “ascertaining

the correctness of any return, making a return where none has been made,

determining the liability of any person for any internal revenue tax . . . , or

collecting any such liability.” 26 U.S.C. § 7602(a). A summons may be issued to

take any testimony of the person concerned and to summon the person liable for

the tax to produce books, papers, records, or other data that may be relevant to the

inquiry. Id. § 7602(a)(2). No agency summons may be issued if there is a Justice

Department referral in effect with respect to the person involved. Id. § 7602(d)(1). 

In order to succeed in enforcing a summons, the IRS must show four

elements: “that the investigation will be conducted pursuant to a legitimate

purpose, that the inquiry may be relevant to the purpose, that the information

sought is not already within the [IRS’s] possession, and that the administrative

steps required by the Code have been followed.” United States v. Powell, 379 U.S.

48, 57–58, 85 S. Ct. 248, 255 (1964). The IRS may satisfy its minimal burden by

presenting the sworn affidavit of the agent who issued the summons attesting to

these facts. Medlin, 986 F.2d at 466. 

Once the showing required by Powell is made, “the burden shifts to the party

contesting the summons to disprove one of the four elements of the government’s

prima facie showing or convince the court that enforcement of the summons would
 This Court has held that decisions of Unit B of the former Fifth Circuit are binding 1

precedent. See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

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constitute an abuse of the court’s process.” La Mura v. United States, 765 F.2d

974, 979–80 (11th Cir. 1985). The taxpayer does not meet his burden by

contesting the underlying validity of the assessment because the validity of the

assessment may not be challenged in a summons enforcement proceeding. United

States v. Harper, 662 F.2d 335, 336 (5th Cir. Unit B Nov. 1981). 

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Revenue Officer C. Lewis stated in her declaration that: (1) she is

investigating the collection of Morse’s tax liabilities for the years 1996, 1997, and

1998, which is a proper purpose for issuing the summons, and that the summons

material may be relevant to the investigation; (2) the summoned materials are not

already in the possession of the IRS; (3) all administrative steps required for the

issuance of the summons have been followed; and (4) no Justice Department

referral is in effect for Morse. This declaration is sufficient to make out a prima

facie case for enforcing the summons. See Powell, 379 U.S. at 57–58, 85 S. Ct. at

255; Medlin, 986 F.2d at 466. Morse’s challenge to the underlying tax liability is

not sufficient to rebut the government’s prima facie case, see Harper, 662 F.2d at

336, so he has failed to establish that the petition should be denied. Accordingly,

we affirm. 
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II.

The government has moved for sanctions against Morse for maintaining a

frivolous appeal, contending that the issues raised by Morse on appeal are frivolous

and that he had been warned about raising them. Before the district court and

again on appeal, Morse has contended that the IRS lacked authority to issue the

summons on the ground that he is not a taxpayer and his income, which was

derived from employment in the private sector, is not subject to federal taxation. 

In its amended order enforcing the summons, the district court warned Morse that

his arguments that the IRS lacked power to issue a summons and to investigate him

were “utterly without merit,” and this Court has long held that this type of

argument is frivolous, see Madison, 758 F.2d at 574 (“The assertion that the

Treasury Department and Internal Revenue Service have no power over this

appellant and this subject matter is frivolous. Congress has the power to lay and

collect taxes and may ‘lay and collect taxes on income, from whatever source

derived, without apportionment among the several states.’” (citations omitted)).

Federal Rule of Appellate Procedure 38 provides that “[i]f a court of appeals

determines that an appeal is frivolous, it may, after a separately filed motion or

notice from the court and reasonable opportunity to respond, award just damages

and single or double costs to the appellee.” Fed. R. App. P. 38. The government
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separately filed a motion for sanctions, which gave Morse a full opportunity to

respond. His response was simply to reassert his frivolous arguments. In Hyslep

v. United States, 765 F.2d 1083 (11th Cir. 1985), we stated that “those who would

litigate in this circuit are put on notice that they may be expected to have sanctions

imposed against them if they continue to raise these sorts of frivolous contentions.” 

Id. at 1084–85. While we are reluctant to impose sanctions on pro se litigants,

Woods v. IRS, 3 F.3d 403, 404 (11th Cir. 1993), we have imposed sanctions on pro

se litigants in certain situations, see King v. United States, 789 F.2d 883, 884 (11th

Cir. 1986) (imposing sanctions on a pro se litigant who was warned that his claims

were meritless); see also Bonfiglio v. Nugent, 986 F.2d 1391, 1394–94 (11th Cir.

1993) (imposing sanctions on a pro se litigant who was also an attorney); Pollard v.

Comm’r, 816 F.2d 603, 605 (11th Cir. 1987) (imposing sanctions on a pro se

litigant who had previously brought frivolous tax claims). 

 Because Morse’s arguments are frivolous and he had been warned about

raising them, we conclude that sanctions are appropriate. In order to determine the

amount of sanctions, we direct the government to file within fourteen days of the

date of this opinion a supplement to its motion setting forth its costs, the time

records of its attorneys, and appropriate affidavits establishing reasonable hourly

rates for those attorneys. Morse may file a response to this supplement within
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seven days from the date he is served with the supplement. We will issue a

separate order setting the amount of the sanction.

AFFIRMED; MOTION FOR SANCTIONS GRANTED.