United States of America Patricia Angus, Revenue Officer, Internal Revenue Service v. William B. Alexander Shirla Alexander, 33 F.3d 62, 10th Cir. (1994)
United States of America Patricia Angus, Revenue Officer, Internal Revenue Service v. William B. Alexander Shirla Alexander, 33 F.3d 62, 10th Cir. (1994)
United States of America Patricia Angus, Revenue Officer, Internal Revenue Service v. William B. Alexander Shirla Alexander, 33 F.3d 62, 10th Cir. (1994)
3d 62
74 A.F.T.R.2d 94-6210
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
Case No. 93-4162 challenged the district court's denial of taxpayers' motion to
proceed on appeal in forma pauperis. In denying taxpayers' motion, the district
court certified that the appeal was "not taken in good faith within the meaning
of 28 U.S.C.1915(a), and is frivolous." Id., tab 32. This decision is committed
to the sound discretion of the district court. Shobe v. California, 362 F.2d 545,
546 (9th Cir.), cert. denied, 385 U.S. 887 (1966). Because taxpayers' arguments
that they are not "taxpayers" for purposes of the Internal Revenue Code and
that the Thirteenth Amendment prohibits their taxation are clearly frivolous,
the district court did not abuse its discretion in denying permission to proceed in
forma pauperis. The judgment of the district court is affirmed.
served with the original summonses and the show cause order. While they did
object in their first responsive pleading to the failure to serve the petition and
the exhibits, R. I, tab 3 at 2, they participated in numerous hearings before the
district court without requesting dismissal based on improper service.
Taxpayers did not raise this issue again or request relief because of it until after
the proceedings were substantially complete. Under these circumstances, where
taxpayers had actual knowledge of the legal process to which they were subject
and took full opportunity to act in their own defense, we find the technical
failure to serve the petition and exhibits insufficient to divest the district court
of personal jurisdiction. See Datskow v. Teledyne, Inc., 899 F.2d 1298, 130203 (2d Cir.) (holding that participation in litigation without reiterating objection
to service of process waives basis for objection), cert. denied, 498 U.S. 854
(1990), cited with approval in Pipkin v. United States Postal Serv., 951 F.2d
272, 274 (10th Cir.1991); see also Kitchens v. Bryan County Nat'l Bank, 825
F.2d 248, 256 (10th Cir.1987) (" 'the federal courts generally take a permissive
attitude towards the mechanism employed for service of process when
defendant actually receives notice.' " (quoting 4 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure 1074, at 295 (1969))).
8
The judgments of the United States District Court for the District of Utah are
AFFIRMED in case No. 93-4116 and case No. 93-4162. The appeals in case
No. 93-4161 and case No. 93-4202 are DISMISSED. The mandates shall issue
forthwith.
**
Honorable Lewis T. Babcock, District Judge, United States District Court for
the District of Colorado, sitting by designation
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470