1 All section references are to the Internal Revenue Code in

effect for the years in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure. 

T.C. Memo. 1997-266

UNITED STATES TAX COURT

DAVID J. WIERDSMA, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8841-96. Filed June 12, 1997.

David J. Wierdsma, pro se.

Marion T. Robus, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

POWELL, Special Trial Judge: This case was assigned

pursuant to the provisions of section 7443A(b)(3) and Rules 180,

181, and 182.1
- 2 -

2 Respondent concedes that the statutory notice of deficiency

should not have included adjustments for the employee's portion

of tax for old-age, survivors, and disability insurance and

hospital insurance (FICA tax) imposed by sec. 3101(a) and (b),

and that the deficiencies and additions to tax must be adjusted

accordingly. Thus, the amounts in dispute are as follows:

 Additions to Tax 

Year Deficiency Sec. 6651(a)(1) Sec. 6654

1993 $2,471 $520 $86

1994 2,284 485 97

Respondent determined deficiencies in petitioner's Federal

income taxes and additions to tax as follows:

 Additions to Tax 

Year Deficiency Sec. 6651(a)(1) Sec. 6654

1993 $3,616 $807 $132

1994 3,359 754 154

Petitioner resided in Fremont, California, at the time he

filed his petition.

After concessions,2 the issues are: (1) Whether petitioner

is liable for the asserted deficiencies and additions to tax, and

(2) whether this Court should impose a penalty upon petitioner

pursuant to section 6673(a)(1).

FINDINGS OF FACT 

In the notice of deficiency, respondent determined that

petitioner failed to file Federal income tax returns for the

taxable years 1993 and 1994 and failed to report wages and

allocated tip income for those years as reflected on Forms W-2

issued by the Edward Thomas Hospitality Corp. In addition to the
- 3 -

3 We need not decide whether petitioner has properly asserted

the Fifth Amendment privilege as he has not otherwise met his

burden of proof. See Petzoldt v. Commissioner, 92 T.C. 661, 684-

685 (1989); cf. Edwards v. Commissioner, 680 F.2d 1268 (9th Cir.

1982).

resulting deficiencies and additions to tax, respondent orally

moved that a penalty be imposed upon petitioner pursuant to

section 6673(a)(1). Petitioner has presented no evidence to

refute respondent's determinations and has refused to testify,

asserting the privilege under the Fifth Amendment.3

OPINION

Section 61(a) defines gross income broadly as "all income

from whatever source derived". Gross income specifically

includes compensation for services. Sec. 61(a)(1). Furthermore,

respondent's determinations are presumed correct, and petitioner

bears the burden of proving that those determinations are

erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933).

In his post-trial memorandum petitioner contends that,

because respondent has conceded the issue concerning FICA taxes,

the burden of proof rests on respondent to show that no other

portion of the deficiency determinations is based on FICA taxes. 

Even assuming arguendo that petitioner's contention constitutes a

correct statement of the law, the notice of deficiency plainly

attributes the remainder of the deficiencies to petitioner's

failure to report his wages and tips for income tax purposes. 
- 4 -

Thus, we reject petitioner's argument. Consequently, and in

light of the fact that petitioner has not introduced any evidence

to show that respondent's determinations are erroneous, we find

for respondent with respect to the deficiencies. Rule 142(a).

Respondent also determined that petitioner is liable for

additions to tax pursuant to sections 6651(a)(1) and 6654 for the

taxable years 1993 and 1994. Section 6651(a)(1) imposes an

addition to tax for failure to file a timely return, unless the

taxpayer establishes that the failure did not result from

"willful neglect" and that the failure was due to "reasonable

cause". Section 6654 imposes an addition to tax on individuals

for any underpayment of estimated tax. Petitioner has made no

argument and presented no evidence concerning these additions to

tax. Accordingly, we hold for respondent with respect to the

additions to tax. Rule 142(a). 

As a final matter, we consider whether this Court should

award a penalty to the United States under section 6673. Section

6673 grants this Court discretion to award the United States a

penalty not to exceed $25,000 at the expense of a taxpayer who,

in the opinion of this Court, maintains a proceeding primarily

for delay or adopts a position in such a proceeding that is

frivolous or groundless. In his amended petition, petitioner

presented tax protester arguments that can only be categorized as

frivolous. Petitioner, however, while less than the model
- 5 -

litigant, generally refrained from urging those arguments in his

post-trial memorandum. Moreover, respondent has conceded error

in the notice of deficiency with respect to the employment tax

determinations. Therefore, we decline to impose a penalty in

this case, and respondent's oral motion will be denied. In so

doing, we caution petitioner that future assertions of such

groundless arguments will result in substantial penalties

pursuant to section 6673. 

To reflect respondent's concessions, 

An appropriate order

and decision will be entered.