Issues raised by an appellant for the first time in a reply brief are generally deemed waived.
A pro se taxpayer appeals a Tax Court decision assessing income tax, a failure-to-file addition, and a penalty for frivolous arguments. The taxpayer argues the notice of deficiency is invalid and raises new arguments in a reply brief. The court reviews the decision for clear error and de novo. It holds that the taxpayer's opening brief arguments are frivolous and that issues raised for the first time in a reply brief are generally deemed waived. The court affirms the Tax Court's decision but denies the Commissioner's motion for sanctions because the requested amount lacks adequate factual support.
At page 1291 Reviewing tax court decisions and frivolous arguments49 citing cases[I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived, and we will not consider the arguments [the appellant] raised for the first time in his reply brief.
- LaFaver Fiberglass Corp. v. Hampton Harold Price, No. 25-015 (B.A.P. 10th Cir. May 19, 2026).published(issues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived)
- Desiree Myrum v. Anthony Michaels, No. 25-016 (B.A.P. 10th Cir. Apr. 15, 2026).published([I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived[.])
- Chiles v. Salazar, 116 F.4th 1178 (10th Cir. 2024).published([I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived.)
- United States v. Pickard, 814 F. App'x 386 (10th Cir. 2020).unpublished([W]e will not consider the arguments [the appellant] raised for the first time in his reply brief.)
- Lunt v. Nationstar Mortg., No. 18-4093 (10th Cir. Jan. 28, 2020).unpublished([I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived.)
- Leon v. Summit Cnty., No. 17-4205 (10th Cir. Nov. 28, 2018).unpublished([I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived.)
- White v. Wycoff, 862 F.3d 1065 (10th Cir. 2017).published([I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived, and we will not consider the arguments [the appellant] raised for the first time in his reply brief.)
- United States v. Williams, 790 F.3d 1059 (10th Cir. 2015).published ([I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived.)
- United States v. Medina, 918 F.3d 774 (10th Cir. 2019).published([I]ssues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived, and we will not consider the arguments [the appellant] raised for the first time in his reply brief.)
- Hulett v. Foster, No. 26-3035 (10th Cir. July 15, 2026).unpublished“generally deemed waived”
Show 38 more citing cases
- Borsody v. Frontier Heritage Communities, No. 25-3205 (10th Cir. June 15, 2026).unpublishedIn any event, assertions “raised by an appellant for the first time on appeal in a reply brief are generally deemed waived,” and so “we will not consider the arguments [Ms. Borsody] raised for the first time in h[er] reply brief.” Wheeler…
- Kinkennon v. Soc. Sec. Admin., No. 1:24-cv-01041 (D.N.M. July 24, 2025).(issues raised for the first time in a reply brief are generally deemed waived)
- Uckerman v. Kijakazi, No. 2:23-cv-00276 (D. Utah Feb. 5, 2024).(noting that generally issues raised for the first time in a reply brief are not considered)
- Allen v. Payne, No. 23-3138 (10th Cir. Dec. 4, 2023).unpublishedSetting aside the rule that new arguments generally may not be presented in reply, Wheeler v. Comm'r, 521 F.3d 1289, 1291 (10th Cir. 2008), we find we do not need to reach a conclusion as to the first Dodson factor for either claim, since…
- Olsen v. CIR, 52 F.4th 889 (10th Cir. 2022).publishedWheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Milatz v. Comm'r of the Soc. Sec. Admin., No. 5:20-cv-01219 (W.D. Okla. Mar. 7, 2022).(issues raised for the first time in a reply brief are generally deemed waived)
- Silva v. United States, No. 21-2005 (10th Cir. June 3, 2021).unpublished Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th 5 Cir. 2008).
- Carlson v. U.S. Dep't of Energy, No. 20-2080 (10th Cir. May 19, 2021).unpublishedOnly in his reply brief does Carlson argue against the court’s Rule 60(b)(1) order, and we will not consider arguments that first appear in his reply brief, see Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Magana Arias v. Barr, No. 19-9541 (10th Cir. July 20, 2020).unpublishedWheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Medina v. Catholic Health Initiatives, 877 F.3d 1213 (10th Cir. 2017).published“issues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived”
- Laratta v. Foster, 708 F. App'x 948 (10th Cir. 2017).unpublished“issues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived”
- United States v. Henry, 852 F.3d 1204 (10th Cir. 2017).publishedWheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Ewing v. DoubleTree DTWC, LLC, 673 F. App'x 808 (10th Cir. 2016).unpublishedTo the extent Plaintiff tries to develop in her reply brief the reasons why the district court erred in excluding the Garcia and Cottle Declarations, her efforts are futile: ‘‘[I]ssues raised by an appellant for the first time on appeal in…
- United States v. Henry, 839 F.3d 1271 (10th Cir. 2016).publishedWheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Chandler v. Comm'r, 660 F. App'x 694 (10th Cir. 2016).unpublished“tax court decisions ‘in the same manner and to the same extent as decisions of the district courts in civil ac *696 tions tried without a jury”
- Spurlock v. Wagner, 661 F. App'x 536 (10th Cir. 2016).unpublishedSee, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir. 2011); Wheeler v. Comm’r of Internal Revenue, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Simmons v. Colvin, 635 F. App'x 512 (10th Cir. 2015).unpublishedWheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir.2008), This rule applies in social security cases as in other contexts, See, e.g., Mays v. Colvin, 739 F.3d 569 , 576 n. 3 (10th Cir.2014), Mr. Simmons has given us no reason *515 to depart…
- McNeil v. Comm'r of Internal Revenue Serv., 467 F. App'x 778 (10th Cir. 2012).unpublished(holding court of appeals has discretion to award damages, a frivolous-appeal penalty, and costs against taxpayer)
- Shellito v. CIR, No. 10-9002 (10th Cir. Aug. 24, 2011).unpublished “We review the Tax Court’s factual findings under the clearly erroneous standard and review its legal conclusions de novo”
- Lewis v. Sandoval, 428 F. App'x 808 (10th Cir. 2011).unpublishedWheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir.2008).
- United States v. Harrell, 642 F.3d 907 (10th Cir. 2011).publishedWheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir.2008).
- United States v. Smith, 606 F.3d 1270 (10th Cir. 2010).publishedWheeler v. Comm’r Internal Revenue, 521 F.3d 1289, 1291 (10th Cir.2008).
- Graham v. Hartford Life & Accident Ins., 589 F.3d 1345 (10th Cir. 2009).published“issues raised by an appellant for the first time in a reply brief are generally deemed waived”
- Bachman v. Comm'r, 283 F. App'x 636 (10th Cir. 2008).unpublishedAlthough we have discretion to award a sanction for a frivolous appeal such as this one, we conclude that the Commissioner has not provided “adequate factual support for the $8,000 lump sum he requests.” See Wheeler v. Comm’r, 521 F.3d 128…
- Martinez-Perez v. Bondi, No. 24-9513 (10th Cir. Aug. 24, 2026).unpublishedSee Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Sedillos v. Soc. Sec. Admin., No. 1:24-cv-00561 (D.N.M. June 27, 2025).See Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Sedillos v. Soc. Sec. Admin., No. 1:24-cv-00561 (D.N.M. June 25, 2025).See Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Talton v. Comm'r, SSA, No. 23-7069 (10th Cir. Dec. 16, 2024).unpublishedSee Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008).
- Uckerman v. Kijakazi, No. 2:23-cv-00276 (D. Utah Sept. 3, 2024).(noting that generally issues raised for the first time in a reply brief are not considered)
- Sewell v. Great N. Ins. Co., 535 F.3d 1166 (10th Cir. 2008).published
- M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753 (10th Cir. 2009).published
- United States v. MacKay, 610 F. App'x 797 (10th Cir. 2015).unpublished
- Rowley v. Morant, 631 F. App'x 651 (10th Cir. 2015).unpublished
- Baer v. Salt Lake City Corp., 705 F. App'x 727 (10th Cir. 2017).unpublished
- Lipin v. Wisehart, No. 18-1060 (10th Cir. Jan. 17, 2019).unpublished
- Channon v. Tavanger, 820 F. App'x 733 (10th Cir. 2020).unpublished
- Martinez v. Soc. Sec. Admin., No. 1:19-cv-00489 (D.N.M. Mar. 19, 2020).
- Ralph v. Comm'r of Soc. Sec. Admin., No. 5:19-cv-00214 (W.D. Okla. Nov. 4, 2019).
Other citing cases
- Andre Jackson, No. 7062-25 (Tax Ct. Sept. 28, 2026).unpublished
- Sitaraman Jagannath, No. 18629-22 (Tax Ct. Sept. 24, 2026).unpublished
- Scott L. Reed & Stacy N. Reed, No. 13757-20 (Tax Ct. Aug. 5, 2026).unpublished
- Colette Branch, No. 7214-20 (Tax Ct. June 17, 2026).unpublished
- Mark L. Fussell, No. 9700-23 (Tax Ct. Dec. 18, 2025).unpublished
- Stewart Weston, No. 1290-20 (Tax Ct. Feb. 12, 2025).unpublished
- Lawrence Leroy Henry, No. 24155-18 (Tax Ct. Aug. 22, 2024).unpublished
- William E. Frazier & Mary A. Frazier, No. 18745-15 (Tax Ct. Apr. 24, 2024).unpublished
- Lance C. Standifird, No. 7964-19 (Tax Ct. Mar. 14, 2024).unpublished
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee
Petitioner-appellant Charles Raymond Wheeler, appearing pro se, appeals from an “order and decision” of the United States Tax Court that assessed a $3,854 deficiency in his income tax for tax year 2003, assessed an addition to tax of $765.45 for failing to file a return for tax year 2003, and ordered him to pay a $1,500 penalty for pursuing frivolous and groundless arguments and for maintaining the Tax Court proceedings primarily for delay. Respondent-appellee Commissioner of Internal Revenue (Commissioner) has filed in this court a motion for sanctions in the amount of $8,000, arguing that this appeal is also frivolous. Mr. Wheeler has filed a response in opposition to the Commissioner’s motion for sanctions.
Having thoroughly reviewed the parties’ arguments and the record, we agree that the appeal is frivolous, affirm the decision of the Tax Court, and deny the Commissioner’s motion for sanctions.
I
Mr. Wheeler failed to file an income tax return for tax year 2003 and did not make any payments of estimated tax for that year. The Commissioner issued a notice of deficiency asserting that Mr. Wheeler received taxable income during 2003 and was liable for income tax in the amount of $9,054.70, plus penalties. See R., Doc. 1, Ex. A at 1, 3.
Mr. Wheeler filed a petition in the Tax Court for a redetermination of the deficiency. Among numerous unintelligible arguments, he also argued that he was not required to file a tax return because the 1040 tax form violates the Paperwork Reduction Act and that the notice of deficiency was invalid because it did not set forth the statutes under which the taxes were due.
Mr. Wheeler offered no evidence at trial. The Commissioner, however, volunteered some concessions concerning Mr. Wheeler’s tax status, tax deductions, and other adjustments that reduced the amount of taxes due, and introduced into evidence his revised calculations of Mr. Wheeler’s tax obligations. Mr. Wheeler agreed to these concessions. The Tax Court explained at length to Mr. Wheeler that his legal arguments were frivolous and that she would take into account his long history of not[*1291] filing tax returns. He persisted in his position that the notice of deficiency underlying this case was not valid.
The Tax Court subsequently issued an order and decision finding that Mr. Wheeler was liable for income tax of $3,854 for tax year 2003 and an addition to tax of $765.45 for failing to file a tax return for tax year 2003. R., Doc. 17. The court further ordered Mr. Wheeler to pay a penalty of $1,500. Id. The court thoroughly explained in a separate opinion why Mr. Wheeler’s arguments were contrary to law and without merit. See generally R., Doc. 12 (Tax Court’s Dec. 6, 2006 Opinion). The court concluded that Mr. Wheeler’s petition was filed “primarily for delay” and his positions were “frivolous and groundless.” Id. at 23. The court held that although Mr. Wheeler prevailed with respect to two of the Commissioner’s asserted additions to tax, “his success is not attributable to any meaningful effort on his part. Rather, his limited success in this case is the result of [the Commissioner’s] failure to satisfy his burden of production ... regarding [these two] additions to tax.” Id. at 22.
II
On appeal, Mr. Wheeler again argues that the notice of deficiency “contained no statutory cite identifying a specific tax for which the Appellant was due and owing to the United States Treasury [and, as a result,] the Appellant was denied the ability to controvert the imposition of a tax.” Aplt. Br. at 3. He also asserts that the Commissioner’s notice of deficiency lacked evidentiary support. In his reply brief, Mr. Wheeler argues that he does not raise his issues for purposes of delay or frivolity and that the notice of deficiency violated the Paperwork Reduction Act.
“We review tax court decisions ‘in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.’ ” Kurzet v. Comm’r, 222 F.3d 830, 833 (10th Cir.2000) (quoting 26 U.S.C. § 7482(a)(1)). “We review the Tax Court’s factual findings under the clearly erroneous standard and review its legal conclusions de novo.” Id.
We hold that the arguments Mr. Wheeler raised in his opening brief are frivolous for the reasons stated by the Tax Court. In addition, issues raised by an appellant for the first time on appeal in a reply brief are generally deemed waived, and we will not consider the arguments Mr. Wheeler raised for the first time in his reply brief. See Hill v. Kemp, 478 F.3d 1236, 1250 (10th Cir.2007), cert. denied , — U.S. -, 128 S.Ct. 873, 169 L.Ed.2d 725 (2008), — U.S. -, 128 S.Ct. 884, 169 L.Ed.2d 725 (2008).
III
Because we are affirming the Tax Court’s decision, we have discretion to award the Commissioner “just damages for his delay, and single or double costs.” 28 U.S.C. § 1912; see Casper v. Comm’r, 805 F.2d 902, 906 (10th Cir.1986). [1] And because this appeal is frivolous, we have discretion to require Mr. Wheeler to pay “a penalty” to the Commissioner, see 26 U.S.C. § 7482(c)(4), and we may award the Commissioner “just damages and single or double costs,” Fed. R.App. P. 38; see Casper, 805 F.2d at 906. This court also “has the inherent power to impose sanctions to regulate the docket, promote judicial efficiency and to deter frivolous filings.” Casper, 805 F.2d at 906. The fact that Mr. Wheeler is appearing pro se does not insu[*1292] late him from the imposition of sanctions. See id.
Although the Commissioner filed a separate motion for sanctions in accordance with Rule 38, we are unpersuaded that he has adequate factual support for the $8,000 lump sum he requests under any of the authorities upon which he relies. Therefore, the motion is denied.
The Tax Court’s decision is AFFIRMED. The Commissioner’s motion for sanctions is DENIED.
. All active circuit judges agree that to the extent Casper v. Commissioner, 805 F.2d 902, 906 (10th Cir.1986), purports to require a $1,500 sanction for a frivolous appeal from a Tax Court decision, it is overruled.