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affirming dismissal for lack of subject matter jurisdiction where there was "no indication that [the plaintiff] exhausted his administrative remedies as required with respect to his claim" (citing section 7429)
Summary of this case from Hall v. United StatesOpinion
No. 09-1405-cv.
March 23, 2010.
Appeal from the United States District Court for the Eastern District of New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be AFFIRMED.
Clive Arnel Sherwood, pro se, Springfield Gardens, NY, for Appellant.
No appearances for Appellees.
PRESENT: PIERRE N. LEVAL, ROBERT D. SACK and RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Appellant Clive Arnel Sherwood appeals from a judgment of the United States District Court for the Eastern District of New York (Matsumoto, J.), which dismissed sua sponte his complaint challenging a levy allegedly placed on his wages by the Internal Revenue Service. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
Pursuant to 28 U.S.C. § 1915(e)(2)(B), a court must dismiss a complaint by a litigant proceeding in forma pauperis if, inter alia, the court determines that it is frivolous or fails to state a claim upon which relief may be granted. We conduct de novo review for both grounds of the district court's sua sponte dismissal. See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001) (dismissal pursuant to § 1915(e)(2)(B)); see also Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 2008) (per curiam) (dismissal pursuant to an absence of subject matter jurisdiction).
We affirm for substantially the same reasons stated by the district court in its memorandum and order. Even liberally construing his pro se complaint, Sherwood's substantive claims are frivolous. Contrary to Sherwood's contentions, the federal income tax is constitutional, wages are taxable income, and the Sixteenth Amendment removed the apportionment requirement for direct taxes. See, e.g., Ficalora v. Comm'r of Internal Revenue, 751 F.2d 85, 87 (2d Cir. 1984); Connor v. Comm'r of Internal Revenue, 770 F.2d 17, 20 (2d Cir. 1985) (per curiam). Sherwood also alleges that the proper procedures for placing a levy on his wages were not followed, but there is no indication that he exhausted his administrative remedies as required with respect to this claim, and the district court therefore properly dismissed this claim. See 26 U.S.C. §§ 7422, 7429; see also Wapnick v. United States, 112 F.3d 74, 75 (2d Cir. 1997) (per curiam); United States v. Dalm, 494 U.S. 596, 601-02, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990).
We have considered Sherwood's remaining arguments and conclude that they are without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.