Nelson W. Hayward v. Irl E. Day , 619 F.2d 716 ( 1980 )

619 F.2d 716

80-1 USTC P 9296

Nelson W. HAYWARD, Appellant,
v.
Irl E. DAY, Appellee.

No. 79-2055.

United States Court of Appeals,
Eighth Circuit.

Submitted March 7, 1980.
Decided March 13, 1980.
Rehearing and Rehearing En Banc Denied April 4, 1980.
Certiorari Denied May 27, 1980.
See 100 S. Ct. 2951.

Nelson W. Hayward, filed brief pro se.

Ronald S. Reed, Jr., U. S. Atty., and Kenneth Josephson, Asst. U. S. Atty., Kansas City, Mo., filed brief for appellee.

Before HEANEY, ROSS and HENLEY, Circuit Judges.

PER CURIAM.

1

Nelson W. Hayward, convicted by a jury in 1978 of four counts of failure to file an income tax return in violation of 26 U.S.C. § 7203,1 appeals the denial of his postconviction petition filed pursuant to 28 U.S.C. § 2255.

2

In this pro se appeal Hayward contends: (1) An income tax on wages is illegal as a direct tax on the source of income; (2) he therefore had no duty to file an income tax return; (3) his failure to file could not have been willful; and (4) the district court erred in denying the petition without a hearing.

3

These claims are frivolous. Congress clearly intended to tax income regardless of the source. See Brushaber v. Union Pacific Railroad Co., 240 U.S. 1, 18, 36 S. Ct. 236, 241, 60 L. Ed. 493 (1916); United States v. Francisco, 614 F.2d 617 at 619 (8th Cir. 1980). The fact that Hayward's failure to file was motivated by his belief that the tax is unconstitutional is no defense. See United States v. Douglass, 476 F.2d 260, 263 (5th Cir. 1973). Moreover, evidence of Hayward's prior taxpaying history and his involvement in the tax protest movement was sufficient to establish he was aware of his legal obligation and intentionally chose not to comply. See United States v. Francisco, supra, 614 F.2d at 618.

4

Because the files and records conclusively establish Hayward is entitled to no relief, the district court did not err in denying his petition without a hearing. See Lindhorst v. United States, 585 F.2d 361, 366 (8th Cir. 1978).

5

This appeal is dismissed as frivolous. See 8th CIR. R. 9(a).

1

Hayward's conviction was affirmed by this court in an unpublished opinion, United States v. Hayward, 603 F.2d 221 (8th Cir. 1978)