Steven A. Fuller and Karen M. Fuller v. United States of America, Douglas W. Samski v. United States of America, Thomas A. Jolly v. United States

In this government tax appeal we must decide whether the IRS properly assessed a $500 penalty against each of the three appellees for filing a frivolous return within the meaning of 26 U.S.C. § 6702 . The appeal raises a novel question concerning Congress’ use of the word “self-assessment” in that section. There are no material issues of fact.

Congress passed the statute as part of the Tax Equity and Fiscal Responsibility Act of 1982. The statute provides for a penalty of $500 when an individual files a return for frivolous or dilatory purposes and when the return does not show that its “self-assessment” is substantially accurate.

Since its passage, the statute has survived repeated attacks upon its constitu tionality and on its application in given instances. It has survived scrutiny under the origination clause, see, e.g., Jolly v. United States, 764 F.2d 642, 644-45 (9th Cir.1985); Boday v. United States, 759 F.2d 1472 , 1476 (9th Cir.1985); Heitman v. United States, 753 F.2d 33, 35 (6th Cir. 1984) , the due process clause of the fifth amendment, see, e.g., Jolly, 764 F.2d at 645-47 ; Boday, 759 F.2d at 1475; Heitman, 753 F.2d at 35 ; Martinez v. IRS, 744 F.2d 71, 72-73 (10th…