T.C. Memo. 2003-213

UNITED STATES TAX COURT

EDWARD KAZUO OZAKI, Petitioner v . COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10677-02. Filed July 16, 2003.

Edward Kazuo Ozaki, pro se. James M. Klein , for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge : Respondent determined the following deficiencies in, and additions to, petitioner’s Federal income tax (tax):- 2 -

1All section references are to the Internal Revenue Code in effect for the years at issue. All Rule references are to the Tax Court Rules of Practice and Procedure.

2The only determinations in the notices of deficiency forthe years at issue that petitioner disputes relate to the additions to tax under secs. 6651(a)(1) and (2) and 6654(a). Respondent concedes the determinations under sec. 6651(a)(2). We conclude that petitioner has abandoned contesting any remaining determinations in the notices of deficiency for the years at issue other than the determinations under secs. 6651(a)(1) and 6654(a). Additions to Tax

Year Deficiency Sec. 6651(a)(1) 1 Sec.

6651(a)(2) Sec.

6654(a) 1994 $9,397 $1,135.00

--- $276.79 1995 12,201 1,484.08

--- 361.11 1996 12,247 1,406.70 $1,563.00 349.34 1997 14,220 1,593.45 1,628.86 395.91 1998 15,372 1,722.60 1,301.52 386.40 1999 21,621 1,235.03 603.79 205.78 2000 20,063 1,471.95 327.10 270.37 The issues remaining for decision are: 2 (1) Is petitioner liable for the addition to tax under section 6651(a)(1) for each of the years at issue? We hold that he is. (2) Is petitioner liable for the addition to tax under section 6654(a) for each of the years at issue? We hold that he is.
FINDINGS OF FACT Most of the facts have been deemed established pursuant to the Court’s Order under Rule 91(f) dated February 26, 2003. At the time petitioner filed the petition in this case, he- 3 -

resided in Chicago, Illinois. Throughout the years at issue until the time of the trial in this case, petitioner, who received a master’s degree in music from Northwestern University, has worked as a sales manager and as a singer/composer. During World War II, when petitioner’s mother was 13 years old, and when petitioner’s father was 17 years old, the U.S. Government confined each of them and their respective families in certain Government facilities because of their Japanese ancestry. Petitioner’s parents made petitioner aware of their respective experiences in those facilities. The last tax return (return) filed by petitioner was for his taxable year 1991. Petitioner did not file a return for any of the taxable years at issue, although he received timely one or more Forms W-2, Wage and Tax Statement, and one or more Forms 1099-NEC, Non-Employee Compensation, for each of those years. No physician or psychologist has made a determination that petitioner suffered from a mental illness or condition that prevented him from complying with the tax laws for the years at issue.Respondent sent to petitioner a notice of deficiency (notice) for petitioner’s taxable years 1994 and 1995, a separate notice for petitioner’s taxable years 1996, 1997, and 1998, and a separate notice for petitioner’s taxable years 1999 and 2000. In- 4 -

those notices, respondent determined that for the years indicated petitioner received the following amounts of taxable income from the following sources:
Tax Year 1994 Source Amount Bands and Bows $1,500 Orchestral Assoc. 5,425 United Bindery 39,940 Walt Disney Pictures 401
1 st Commercial 83 Total Income $47,349
Tax Year 1995 Source Amount Bands and Bows $800 Orchestral Assoc. 9,981 Fleur De Lys 775 United Bindery 45,700 1 st Commercial 20 Total Income $57,276
Tax Year 1996 Source Amount Bands and Bows $1,600 Orchestral Assoc. 7,528 United Bindery 48,725 1 st Commercial 15 Total Income $57,868
Tax Year 1997 Source Amount Bands and Bows $1,440 Orchestral Assoc. 10,729 United Bindery 51,620 1 st Commercial 17 Oak Park Temple 1,080 Total Income $64,886- 5 -

3 There was a mathematical error in computing the total income of petitioner for the tax year 2000 that appeared in the facts deemed established under Rule 91(f). The correct total income of petitioner for that year, i.e., $85,441, as determined in the pertinent notice, is used here. Tax Year 1998 Source Amount Orchestral Assoc. $4,739 United Bindery 56,061 1 st Commercial 22 Oak Park Temple 1,578 St. Ferdinand’s 5,242 Total Income $67,642
Tax Year 1999 Source Amount Chicago Sinai Congregation $300
St. Ferdinand’s 1,735 United Bindery 78,469 Orchestral Assoc. 7,369 Oak Park Temple 1,480 1 st Commercial 28 Total Income $89,381
Tax Year 2000 Source Amount Chicago Sinai Congregation $75 United Bindery 75,175 Orchestral Assoc. 7,651 Oak Park Temple 1,630 1 st Commercial 41 Halevi Choral 690 Chicago Sinai Congregation 150
Half Note Music 29 Total Income 3 $85,441- 6 -

4The record does not disclose when respondent commenced an examination of each of the years at issue. We proceed on the assumption that respondent’s examination of each of those yearscommenced after July 22, 1998, and that sec. 7491(c) is applicable in the instant case. The record establishes that petitioner did not file a tax return or pay estimated tax for any of the years at issue. We conclude that respondent has satisfied respondent’s burden of production under sec. 7491(c). OPINION Petitioner has the burden of proving that respondent’s determinations under sections 6651(a)(1) and 6654(a) are wrong. 4 Rule 142(a); Welch v. Helvering , 290 U.S. 111, 115 (1933). Petitioner claims that his failure to file a return for any of the years at issue and to pay estimated tax for each such year is attributable to his “mental illness caused by failure of U.S. Government to acknowledge that violation of constitutional andcivil rights of Japanese Americans during World War 2 has debilitating and demoralizing effects on the child (Edward Kazuo Ozaki) of U.S. concentration camp survivors.” With respect to the determinations at issue under section 6651(a)(1), mental illness or mental incapacity can constitute reasonable cause for the failure to file a return. Williams v. Commissioner , 16 T.C. 893, 906 (1951); see Carlson v. United
States , 126 F.3d 915, 922 (7 th Cir. 1997) (addressing reasonable cause exception with respect to failure to pay tax under section 6651(a)(2)). However, if the taxpayer is able to exercise- 7 -

ordinary care and prudence with respect to nontax matters, the claimed mental illness or mental incapacity does not constitute reasonable cause. See Carlson v. United States , supraat 923. Except for his self-serving testimony, on which we areunwilling to rely, petitioner has introduced no evidence establishing that he had a mental illness or mental incapacity which prevented him from filing a return for each of the years at issue. In fact, the record establishes that, throughout theyears at issue until the time of the trial in this case, petitioner has worked as a sales manager and as a singer/composer and has almost doubled his income throughout that period. On the record before us, we find that petitioner has failed to carry his burden of proving that he suffered from a mental illness or mental incapacity which prevented him from filing a return for each of the years at issue. On that record, we further find that petitioner has failed to prove that he is not liable for the addition to tax under section 6651(a)(1) for each of those years. With respect to the determinations at issue under section 6654(a), on the record before us, we find that petitioner has failed to show that any of the exceptions in section 6654(e) apply in the instant case. On that record, we further find that petitioner has failed to prove that he is not liable for the addition to tax under section 6654(a) for each of the years at issue.- 8 -

To reflect the foregoing, respondent’s concession, and the issues deemed abandoned by petitioner,

Decision will be entered under Rule 155

.