UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ERNEST JAN FOWLKE, Petitioner-Appellant,

v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 13-9000 (T.C. No. 24767-10) (Tax Court)

ORDER AND JUDGMENT *

Before HOLMES , HOLLOWAY , and BACHARACH , Circuit Judges.

Mr. Ernest Jan Fowlke appeals the Tax Court’s assessment of additional taxes and imposition of sanctions. Mr. Fowlke admits that he earned money, but denies a duty to pay income tax. We affirm. Background Mr. Fowlke did not file federal income tax returns from 2004 to 2008. Based on substitute returns, the Internal Revenue Service assessed tax deficiencies under 26 U.S.C. § 6651(a)(1) (failur e to file timely tax retu rns), § 6651(a)(2) (failure to

* This order and judgment does not constitute precedent. See Tenth Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - timely pay taxes), and § 6654 (fa ilure to make estimated ta x payments). Mr. Fowlke challenged these assessments by petitioning the Tax Court. The Commissioner of Internal Revenue moved for judgment on the pleadings, and Mr. Fowlke moved to dismiss. With these filings, the Tax Court held a hearing and found that the claims i nvolved a meritless protest agai nst the federal income tax system. Thus, the court granted the Comm issioner’s motion, de nied Mr. Fowlke’s motion to dismiss on grounds of mootness, and sanctioned Mr. Fowlke for making frivolous arguments. Th is appeal followed. Tax Court’s Alleged Delay in Filing Documents According to Mr. Fowlke, the Tax Cour t delayed filing his motion to dismiss and response to the Commiss ioner’s motion. With this contention, Mr. Fowlke asserts that the Tax Court ruled without th e benefit of his res ponse brief. These representations are incorrect. Mr. Fowlke states that the Tax Cour t “entered” the motion to dismiss and response brief on March 6, 201 2, conducted a hearing six days later, and issued a decision over a month later. Appellant’s Informal Br. at 4-5. Thus, even under Mr. Fowlke’s chronology, the Tax Court would have had th e benefit of the motion to dismiss and response brie f at the time of the hearing. This sequence is confirmed in the record, for the judge in Tax Court referr ed to Mr. Fowlke’s motion to dismiss and response brief. Tr. at 3. Because the judge had the motion to dismiss and response- 3 - brief when she conducted the hearing, a ny delay in filing the documents would not have affected the outcome. The Commissioner’s Motion for Judgment on the Pleadings We conduct de novo review over the Tax Court’s grant of judgment on the pleadings. See Nelson v. State Farm Mut. Auto. Ins. Co. , 419 F.3d 1117, 1119 (10th Cir. 2005) (a motion for judgment on the pleadings is reviewed de novo). In challenging the Tax Court’s judgment , Mr. Fowlke argues that he is not subject to taxation, that th e income tax falls on earnings from “privileges” but not “rights,” that the tax falls only on “United St ates persons” and he is not one, that the Tax Examiner lacked authority to issue a notice of defici ency, and that the Tax Court lacked jurisdiction. Th ese arguments are invalid. First, Mr. Fowlke argues that the tax is imposed on income, but is not directed to any person or entity. We rejected this argument in Charczuk v. Commissioner of Internal Revenue , 771 F.2d 471, 473 (10th Cir. 1985), and must follow that decision. The second argument is that the Cons titution confines the taxation power to privileges, rather than rights (such as the right to earn a living). We rejected this argument, as well, in Charczuk , 771 F.2d at 472-73, and characterized the argument as frivolous in Lonsdale v. United States , 919 F.2d 1440, 1447-48 (10th Cir. 1990). Again, we must follow th ese precedents and reject Mr. Fowlke’s argument. Third, Mr. Fowlke denies that he is a “United St ates person” because that phrase is used elsewhere to refer to fo reign corporations. This contention is- 4 - frivolous. The tax code define s the term “United States pe rson” to include citizens or residents of the United States. 26 U.S.C. § 7701(a)(30) (2006). Because Mr. Fowlke does not deny that he is a citizen or resident of the United States, he is considered a “United States person” under the tax law. Fourth, Mr. Fowlke contends that the notice of deficiency was issued by a Tax Examiner, who exceeded his au thority under the Internal Revenue Manual. But, the Manual does not give ri ghts to the taxpayer. See Armstrong v. Commissioner of Internal Revenue , 15 F.3d 970, 975 (10t h Cir. 1994) (holding that the Internal Revenue Manual is dir ectory rather than mandatory and lacks the force and effect of law). Thus, we reject Mr. Fowlke’s argument based on th e Internal Revenue Manual. Mr. Fowlke’s fifth argumen t is that the Tax Court l acked jurisdiction because he is not a “taxpayer.” This argument is circular becaus e it turns on his contention, rejected elsewhere, that he is not subject to the income tax. The Tax Court has jurisdiction over cases begun by “taxpaye rs.” Tax Court Rule 13(a)(1). Under federal law, the te rm “taxpayer” include s “any person subject to any internal revenue tax.” 26 U.S. C. § 7701(a)(14) (2006). As discussed elsewhere, Mr. Fowlke is subject to the in come tax; as a resu lt, the Tax Court had jurisdiction. Sanctions In addition to challenging the Tax Cour t’s finding of a deficiency, Mr. Fowlke challenges its imposition of sanc tions. We reject this ch allenge. The Tax Court is- 5 - authorized to impose sanctions up to $25, 000 when a taxpayer suit is frivolous or intended to create delay. 26 U.S.C. § 6673(a)(1)(A)-(B) (2006). The court applied this authority here, sanctioning Mr. Fowlke $5,000 because it viewed Mr. Fowlke’s claims as groundle ss. Tr. at 10. We review these sanctions for an abuse of discretion; 1 and in doing so, we conclude that the Tax Court acted within its discretion. Like the district court, we believe that Mr. Fowlke’s underlying argu ments are groundless because they are plainly foreclosed by govern ing case law or statutes. Conclusion As a result, we affirm the Tax Court’s judgment.

Entered for the Court

Robert E. Bacharach Circuit Judge

1 See Lewis v. Commissioner of Internal Revenue Service , 523 F.3d 1272, 1274 (10th Cir. 2008) (“Ta x Court sanctions are reviewed for an abuse of discretion.”).