Cir

MEMORANDUM

David K. Winterroth appeals pro se from the tax court’s summary judgment in favor of the Commissioner of Internal Revenue (“Commissioner”) in Winterroth’s action challenging a federal tax lien to collect penalties assessed against him for filing a frivolous federal income tax return. We have jurisdiction under 26 U.S.C. § 7482 (a). We review de novo the Tax Court’s grant of summary judgment. Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir.2002). We affirm.

The Tax Court properly concluded that, in light of Winterroth’s 2006 return reporting zero income, zero tax due, and requesting a refund for the amount withheld by his employer despite having earned wages, the penalty issued against Winterroth was appropriate. See 26 U.S.C. § 6702 (a) (civil penalty of $5,000 for filing a frivolous tax return); Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.1985) (per curiam) (a form 1040 filed to obtain a tax refund is a tax return).

The Tax Court properly granted summary judgment because the record supports the Commissioner’s determination that the collection of the penalty should proceed, and Winterroth failed to raise a genuine dispute of material fact. See Hansen v. United…