PROTESTERS' REFUND SUIT DISMISSED FOR FAILURE TO STATE CLAIM.

                 IN THE UNITED STATES DISTRICT COURT

[1] Pending before the Court in the above-entitled matter is Defendant's Motion to Dismiss (Docket No. 2) and Plaintiffs' Motion to Dismiss Defendant's Motion to Dismiss and Motion for Summary Judgment (Docket No. 5). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Furthermore, it does not appear that the parties are requesting oral argument on their motions. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument. D. Id. L. Civ. R. 7.1.

[2] The Defendant seeks to dismiss the Plaintiffs' complaint on the ground that it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss should not be granted "unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party. See, Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.), cert. denied, 506 U.S. 909 (1992). The Ninth Circuit has held that "in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). Finally, the Court's review of this motion is undertaken with an eye on Ninth Circuit standards regarding pro se litigants (see, Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991)), and the Court shall attempt to construe the Plaintiffs' pleadings in the most favorable light.

[3] Plaintiffs appear to be claiming in their complaint that they are entitled to a refund from the Internal Revenue Service (IRS) for the overpayment of taxes on private earnings. The Plaintiffs also seek a determination of their taxpayer status. The Plaintiffs claim they are non-resident aliens in relation to the tax law; they are not subject to income taxes since they are not employees of the federal government; they are not in the classification of persons required to file employment tax; that Congress has no authority to tax private compensation since the Constitution prohibits Congress from imposing a non-apportioned tax on any form of property; and they have never been engaged in a "trade or business" in the United States; they have no income under the Corporate Excise Act of 1909 or no "income" as properly defined at law and by the Supreme Court.

[4] Plaintiffs' claims are without merit. Plaintiffs seek refunds related to income taxes, rather than excise taxes, so the complaints about the excise taxes are disregarded. The Ninth Circuit in Grimes Comm. of Internal Revenue, 806 F.2d 1451 (9th Cir. 1986) held in part:

     There can be no doubt that the tax on income is constitutional

[6] Section 61 imposes a tax on income, and under the Tax Code, wages are income. 26 U.S.C. section 61, Grimes, Olson v. United States, 760 F.2d 1003, 1005 (9th Cir. 1985). Accepting the facts alleged in the complaint as true, Plaintiffs are taxpayers within the meaning of the code are subject to federal income tax. Olson, In re Becraft, 885 F.2d 547 (9th Cir. 1989). Finally, Plaintiffs' argument that the income tax cannot constitutionally tax wages has no merit and was long ago singled out as a frivolous argument. See, Coleman v. Commissioner, 791 F.2d 68 (7th Cir. 1986).

[7] For these reasons, the Court agrees with the Defendant that Plaintiffs have failed to state a claim upon which relief can be granted and allowing the Plaintiffs to amend their complaint would be useless as the pleading could not possibly be cured by the allegation of other facts.

[8] Being fully advised in the premises, the Court HEREBY ORDERS that:

     1) Plaintiffs' Motion to Dismiss Defendant's Motion to Dismiss

                                   Edward J. Lodge