Opinion
Civ. A. No. 3:95CV156-D-A
January 9, 1996.
Hawk Windwalker, Grenada, MS, pro se.
J. Brad Pigott, Jackson, Mississippi, Alfred E. Moreton, III, U.S. Attorney's Office, Oxford, Mississippi, William D.M. Holmes, U.S. Department of Justice, Washington, D.C., for defendant.
ORDER DISMISSING PLAINTIFF'S CLAIMS
Presently before the court is the motion of the defendant Margaret M. Richardson, Commissioner of the Internal Revenue Service, to dismiss the plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Finding the motion well taken, the same shall be granted.
The plaintiff in this action, Mr. Hawk Windwalker, filed his pro se complaint for damages in the amount of $10,000,000.00 against Ms. Richardson in her official capacity as Commissioner of the Internal Revenue Service. The basic facts underlying this action begin with the plaintiff and his wife, Phoenix Windwalker, filing a joint tax return for the tax year 1989. Under this return, the Windwalkers were due a refund in the amount of $662.00. However, Phoenix Windwalker, prior to her marriage to Hawk, failed to file tax returns for several years. As a result of this failure to file returns, the Internal Revenue Service made a deficiency assessment against Phoenix Windwalker for the amount owing. The 1989 refund amount was withheld by the Internal Revenue Service to offset a portion of the owed taxes.
Apparently, Phoenix Windwalker's name was at one time Corine D. Carruthers.
The present action by Hawk Windwalker challenges this offset as illegal, and makes several unsupported legal assertions to back his claim. These include the positions that Federal income taxes cannot be assessed against an individual's wage income and that Federal income taxes are not owed by individual citizens unless they actually file a tax return. Mr. Windwalker has brought to this court's attention no facts upon which he could properly challenge the actions of the Internal Revenue Service in this matter, even if this court possesses sufficient jurisdiction to entertain his claim. This action shall be dismissed.
As well, while he is fully entitled to appeal the decision of this court, Mr. Windwalker is advised that he should carefully consider any notions of attempting to have this claim rise from its ashes and return to life:
More than a decade ago, we repeated a warning given three years before that frivolous challenges to the sixteenth amendment and income tax legislation and regulations would result in the imposition of the full range of sanctions provided by Rule 38 of the Federal Rules of Appellate Procedure. Apparently our cautions have gone unheeded.Sochia v. Commissioner of Internal Revenue, 23 F.3d 941, 944 (5th Cir. 1994).
Therefore, it is hereby ORDERED THAT:
1) the plaintiffs claims in this matter are hereby DISMISSED for failure to state a claim upon which relief can be granted. All costs are to be assessed against the plaintiff.
SO ORDERED.