MEMORANDUM OF OPINION AND ORDER
SCHWARZER, District Judge.
In these eight related actions, taxpayers have challenged penalties assessed against them by the Internal Revenue Service for filing "frivolous" 1982 income tax returns. Defendant has moved to dismiss the actions
All the taxpayers oppose the use of their taxes to support or supply the military on ethical or religious grounds. The facts of the individual cases are established by the allegations of the complaints and counsel's oral stipulations at the hearing, are undisputed and are as follows:
The IRS assessed each of the plaintiffs a $500 penalty pursuant to 26 U.S.C. § 6702.
I. Scope of the Statute
Plaintiffs initially assert that the penalty may not be assessed against them because their actions fall outside the scope of the statute. However, the statute's plain language, supported by clear legislative
Second, the penalty may be assessed against a taxpayer only if the conduct discussed above results from the taxpayer's taking a "position which is frivolous," § 6702(a)(2)(A); or the taxpayer's "desire (which appears on the purported return) to delay or impede the administration of Federal income tax laws," § 6702(a)(2)(B). The incorrectness or incompleteness of the plaintiffs' returns results here from their adoption of positions that are "frivolous" within the statute's meaning. The legislative history states that:
S.Rep., supra, at 278, reprinted in 1982 U.S.Code Cong. & Ad.News at 1024. Moreover, the long and unbroken line of authority establishing the impermissibility of these tax reductions dispels any doubt that plaintiffs' positions are "frivolous" within the meaning of the statute. See, e.g., Lull v. Commissioner, 602 F.2d 1166 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 643 (1980); First v. Commissioner, 547 F.2d 45 (7th Cir.1976) (per curiam); Autenrieth v. Cullen, 418 F.2d 586 (9th Cir.1969), cert. denied, 397 U.S. 1036, 90 S.Ct. 1353, 25 L.Ed.2d 647 (1970).
II. Substantive First Amendment Challenges
A. Right to Petition the Government for Redress of Grievances
Plaintiffs argue that the penalties assessed against them impermissibly restrict the right to petition the government for redress of grievances guaranteed to them by the First Amendment. The argument is without substance. Penalizing an individual who seeks to claim frivolous tax deductions in no way hinders that individual from complaining to any government official about the way those taxes are spent. See, e.g., Cupp v. Commissioner, 65 T.C. 68, 83-84 (1975), aff'd, 559 F.2d 1207 (3d Cir.1977).
B. Free Exercise of Religion
Plaintiffs also argue that the § 6702 penalty impermissibly burdens their First Amendment right to the free exercise of religion.
C. Freedom of Expression
Similar reasoning applies to any claim that § 6702 impermissibly abridges plaintiffs' First Amendment rights to freedom of expression. Even if plaintiffs' attempts to avoid or redirect their taxes were treated as expressive activity protected by the First Amendment, the authorities cited above establish that the necessities of maintaining a revenue system raise a compelling governmental interest under these circumstances adequate to override this fundamental right. See United States v. Malinowski, 472 F.2d 850, 857-58 (3d Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). Cf. Lee, supra, 455 U.S. at 259-60, 102 S.Ct. at 1056. And those necessities are served here by means that are both narrowly tailored to their object and plainly content-neutral. See United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). The statute's legislative history demonstrates the substantial and growing interference with the effective functioning of the revenue system created by frivolous
Indeed, tax protest has been considered a disfavored means of exercising these civil rights, the taxpayer's appropriate remedy lying in direct participation in the collective political process. See United States v. War Resisters League, 45 A.F.T.R.2d (P-H) ¶ 80-605 (S.D.N.Y.1979); cf. United States v. Richardson, 418 U.S. 166, 179, 94 S.Ct. 2940, 2947, 41 L.Ed.2d 678 (1974). Plaintiffs' attempt to transform a sincere belief in the moral rectitude of their vision of what the polity should be into absolution for flouting the laws of the polity that exists is not shielded by the First Amendment:
Malinowski, supra, 472 F.2d at 857.
III. Vagueness and Overbreadth
Plaintiffs also launch facial challenges against § 6702 on the grounds that it is overbroad and vague. Neither of these contentions has merit.
Plaintiffs contend that the indeterminacy of the words "frivolous" and "self-assessment" renders § 6702 void for vagueness. The claim cannot be supported. All due process requires is a definition of the infraction "in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with...." Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). That standard is met here.
With respect to the term "frivolous," its interpretation and application will in most cases be beyond dispute. In those cases, a taxpayer exercising the common sense of an ordinary person will know or have reason to know that the reductions he or she proposes are, as Congress defines the term, "clearly unallowable," see S.Rep., supra, at 278, reprinted in U.S.Code Cong. & Ad. News at 1024, or as the dictionary defines it, "hav[e] no basis in law or fact," Webster's Third New International Dictionary 913 (unabridged ed. 1971). "[T]he general class of offenses to which the statute is directed is plainly within its terms, [and it] will not be struck down as vague, even though marginal cases could be put where doubts might arise." United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
Similarly, the statutory term "self-assessment" has a simple meaning in this context apparent to ordinary common sense. Plaintiffs point to numerous differing technical uses of the words "assessment" and "self-assessment" in tax statutes, regulations and cases, but these uses are beside the point. Read in the context of the statute at issue here, it is obvious that the term refers simply to the taxpayer's representations to the government on his or her return regarding taxes due. See part I, supra; Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); Macatee v. United States, 214 F.2d 717,
But plaintiffs' vagueness challenge must fail on an even more immediate ground. The Supreme Court has made it clear that "[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Inasmuch as plaintiffs' actions fall squarely within the statute's unambiguous prohibitions (see part I, supra), they lack standing to raise the vagueness objections.
Plaintiffs' overbreadth challenges are equally meritless. "In a facial challenge to the overbreadth ... of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail." Hoffman Estates, supra, 455 U.S. at 494, 102 S.Ct. at 1191. See also New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 3360-63, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). As was demonstrated in part II, supra, § 6702 does not infringe constitutionally protected conduct. It therefore cannot be struck down as overbroad.
IV. Procedural Challenges
Finally, plaintiffs attack the penalties by asserting defects in the procedures by which they were assessed and may be challenged. These claims too are without merit.
A. Freedom of Information Provisions of the Administrative Procedure Act
Plaintiffs argue that the IRS's failure to publish interpretive guidelines for § 6702 in the Federal Register violates the freedom of information provisions of the Administrative Procedure Act, specifically 5 U.S.C. § 552(a)(1)(D).
Even assuming relevant guidelines existed, § 552(a)(1)(D) does not require their publication. Publication of an administrative interpretation is not required when "(1) only a clarification or explanation of existing laws or regulations is expressed; and (2) no significant impact upon any segment of the public results." Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir. 1983); Anderson v. Butz, 550 F.2d 459, 462-63 (9th Cir.1977). Both criteria are met here. Any interpretation of § 6702 applicable to plaintiffs would only reiterate Congress's plainly expressed intent that "war tax" reductions be considered "frivolous." As such, those interpretations would change nothing and would thus "have no impact on the substantive rights
B. Defects in Notice
Plaintiffs assert that the IRS notice informing them of the penalties assessed against them violates both the statutory procedure prescribed for § 6702 penalties and their Fifth Amendment right to due process. In each case at bar, the taxpayer received a notice from the IRS stating: "You have been assessed a penalty under Section 6702 of the Internal Revenue Code for filing a frivolous income tax return." Each taxpayer paid the 15% of the penalty required to challenge it, see § 6703(c)(1), and demanded a refund and abatement on IRS Form 843, which instructs the taxpayer to "Explain why you believe this claim should be allowed and show computation of tax refund or abatement." Each taxpayer was subsequently informed that his or her claim had been disallowed in full on the ground that "The reasons stated in your claim do not constitute adequate basis for abatement of your penalty."
The government's actions were entirely consistent with 26 U.S.C. § 6703, which dictates the procedures to be followed in assessing, challenging, and collecting penalties under § 6702. Section 6703(b) provides that the procedures normally required in deficiency or penalty assessments are inapplicable to § 6702 penalties; thus violation of any of those provisions would be irrelevant. And § 6703 provides no requirements with respect to form or specificity of notice. Plaintiffs' assertion that the conclusory nature of the IRS's notices violates § 6703 by effectively shifting the burden of proof that § 6703(a) allocates to the government in taxpayer actions challenging the § 6702 penalty is without substance. The IRS still bears the burden of proving by a preponderance all factual predicates for imposition of the penalty. As discussed below, there is nothing to suggest that the government's use of general language to deny plaintiff's claims has in any way prejudiced plaintiffs' conduct of these actions.
Nor did government practice deprive the taxpayers of due process. The notice each plaintiff received recited the assessment of the penalty, the taxable year for which it was assessed, and the statutory basis for assessment. Due process requires no more. See Abatti v. Commissioner, 644 F.2d 1385, 1389 (9th Cir.1981); Commissioner v. Stewart, 186 F.2d 239, 241 (6th Cir.1951) (per curiam); Olsen v. Helvering, 88 F.2d 650, 651 (2d Cir.1937) (L. Hand, J.); Jarvis v. Commissioner, 78 T.C. 646, 655-56 (1982).
Plaintiffs point to Treas.Reg. § 301.6402-2(b), 26 C.F.R. § 301.6402-2(b), which requires the taxpayer to "set forth in detail each ground on which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof" in order for the claim to be considered. They apparently fear that the government's general language in assessing the penalty might deprive an individual of a meaningful opportunity to contest the government's assessment in his or her refund claim, and later work to foreclose meritorious grounds of challenge in a refund suit. While such a scenario might raise due process problems (though the proposition is subject to substantial doubt, see e.g., Herrington v. United States, 416 F.2d 1029 (10th Cir.1969)), it simply has not occurred here. No plaintiff has been prevented from raising any legal or factual objection to the imposition of the penalty. Plaintiffs' generalized apprehensions have not materialized in this case, and therefore cannot form the basis for a challenge to the assessment.
C. Lack of a Predeprivation Hearing
Plaintiffs lastly argue that the requirement in § 6703(c) that the taxpayer pay 15% of the penalty before having standing to challenge it in district court deprived them of property without due process. Controlling authority directly refutes this contention. The constitutionality of tax collection without a predeprivation hearing has long been established. As Justice Brandeis declared: "Where only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate." Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931). Although the Supreme Court's later opinion in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), significantly narrowed the range of property deprivations that the State might constitutionally effect without a prior hearing, it specifically approves Phillips and reaffirms the constitutional propriety of deferring judicial review of a tax until after its collection.
The Courts of Appeals have uniformly extended the reasoning of these cases to claims involving penalty as well as deficiency assessments, and to situations where no precollection review, in Tax Court or district court, is statutorily available. See, e.g., Boynton v. United States, 566 F.2d 50, 53 & n. 2 (9th Cir.1977); Bernardi v. United States, 507 F.2d 682 (7th Cir.1974) (per curiam), adopting opinion of district court, 74-1 U.S.Tax Cas. (CCH) ¶ 9170 (N.D.Ill.1973), cert. denied sub nom. Richter v. United States, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693 (1975); Kalb v. United States, 505 F.2d 506, 510 (2d Cir. 1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981,
All plaintiffs except Mary McKenna have failed to state a claim on which relief can be granted. Their actions are dismissed with prejudice under Fed.R.Civ.P. 12(b)(6). Treating the government's motions as motions for summary judgment, and taking into consideration the stipulated facts respecting the relevant particulars of the returns filed by the various plaintiffs including McKenna, the Court concludes that there is no genuine dispute as to any material fact, and that the government is entitled to judgment as a matter of law. The government's motions for summary judgment are granted, and plaintiffs' motions are denied. Judgment will be entered in favor of the government in all eight actions, the parties to bear their own costs.
IT IS SO ORDERED.
(a) Civil penalty. — If —
(1) any individual files what purports to be a return of the tax imposed by subtitle A but which —
(2) the conduct referred to in paragraph (1) is due to —
then such individual shall pay a penalty of $500.