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Zegzula v. United States

filed*fn*: February 10, 1992.

HENRY D. ZEGZULA, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Washington. Walter T. McGovern, Senior Judge, Presiding. D.C. No CV-90-0963-WTM

Before: Wallace, Chief Judge, Sneed and Alarcon, Circuit Judges.

MEMORANDUM

Henry D. Zegzula appeals pro se the district court's dismissal of his petition for a writ of prohibition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Analysis

Zegzula failed to file income tax returns for tax years 1977 through 1981, and tax years 1983 through 1987. The IRS notified Zegzula that he had been under investigation for willful attempt to evade payment of taxes and willful failure to file and that his case was being recommended for criminal prosecution.

Zegzula sought a writ of prohibition against the United States and the Internal Revenue Service ("IRS") to stop the IRS's criminal investigation and recommendation for criminal prosecution. In his petition for a writ of prohibition, Zegzula argued that the "administrative proceeding of examinations without a taxpayers return" are statutorily unauthorized.

28 U.S.C. § 1651(a) provides the courts with the authority to issue all writs necessary or appropriate in aid of [its] jurisdiction [] and agreeable to the usages and principles of law.'" Territory of Guam v. District Court of Guam, 641 F.2d 816, 820 (9th Cir. 1981) (quoting 28 U.S.C. § 1651(a)). Writs of mandamus and prohibition are drastic remedies only to be used in extraordinary circumstances. See Guam, 641 F.2d at 820. Traditionally, the writs have been used to confine an inferior court to the lawful exercise of its jurisdiction, or to compel it to exercise its authority when it has the duty to do so. See id. The party seeking the writ has the burden of showing that its right to issuance of the writ is clear and undisputable. See id.

Here, Zegzula neither seeks to confine a lower court to its jurisdiction, or to compel it to exercise its jurisdiction where it has a duty to do so. Cf. Guam, 641 F.2d at 820. Further, no extraordinary circumstances exist in this action, and Zegzula has failed to show that he has a clear and undisputable right to issuance of a writ of prohibition. See Guam, 641 F.2d at 820. Instead, Zegzula argues that the IRS's criminal investigation was not statutorily authorized. This argument lacks merit.

Sections 7601 and 7602(b) of the code provide the IRS with the statutory authority to conduct criminal investigations. See 26 U.S.C. §§ 7601 (authorizing the IRS to inquire and investigate all persons who are liable to pay any internal revenue tax), 7602(b) (authorizing the IRS to inquire into any offense connected with the administration and enforcement of the internal revenue laws). Moreover, sections 7201 and 7203 authorize criminal penalties for tax evasion and willful failure to file. See 26 U.S.C. §§ 7201, 7203.

Furthermore, Zegzula's contention that the IRS exceeded its jurisdiction by subjecting him to an investigation without access to a return is without merit. It is obvious that no tax return must be filed by a taxpayer as a prerequisite to an investigation for willful failure to file, and there is no statutory basis for Zegzula's argument that a tax return, filed by the taxpayer, is a necessary prerequisite for an investigation for tax evasion. See 26 U.S.C. 7201. Accordingly, the district court properly denied Zegzula's petition for a writ of prohibition. See id.

II

Rule 11 Sanctions

In the government's motion to dismiss, it requested Rule 11 sanctions against Zegzula for bringing a frivolous action for the purpose of evading legitimate law enforcement efforts. The district court granted the ...


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