1Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

T.C. Memo. 1998-284

UNITED STATES TAX COURT

STEVEN A. MONACO, Petitioner v.

 COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15291-97. Filed August 5, 1998. 

Steven A. Monaco, pro se.

Jonathan J. Ono, for respondent.

MEMORANDUM OPINION

RUWE, Judge: Respondent determined a deficiency of $20,785

in petitioner's 1994 Federal income tax plus additions to tax

pursuant to sections 66511 and 6654 in the respective amounts of

$5,196.25 and $1,070.98. Respondent concedes that one of the
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adjustments in the notice of deficiency overstated income that

petitioner received from Crawford & Co. by $2,236. There is no

disagreement regarding the remaining items which form the basis

for respondent's deficiency determination, and petitioner does

not argue that he is entitled to any deductions, credits, or

other allowances in addition to those used by respondent.

The only issue raised by petitioner at trial and in his

posttrial brief is his contention that the notice of deficiency

was improper because it was not supported by a properly signed

assessment. Thus, petitioner in his brief makes the following

argument:

Before any liability of any type can be created there

must be an assessment. That assessment must be

certified as a true and correct assessment by an

assessment officer. The Petitioner questions how a

NOTICE OF DEFICIENCY can state that this is "legal

notice" when legal notice could only be legal if it was

supported by a properly signed assessment. What

officer, agent, employee or other person is authorized

to issue a NOTICE OF DEFICIENCY without an assessment

being signed and certified to by an Assessment Officer? 

According to IR Code section 6065, the NOTICE OF

DEFICIENCY has been improperly signed. Where is the

attested signature? The Petitioner desires to have the

Assessment Officer or other individual who has

certified to the correctness of this assessment be

identified. If there is no assessment, then the

petitioner would like to know who the person is that

created and caused to be sent a bill for $20,785.00 

The Petitioner would like to subpoena that person as a

witness. At the present time, that person remains

unidentified. 
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Background

Petitioner resided in Kihei, Hawaii, at the time he filed

the petition. During 1994, petitioner worked as a self-employed

physical therapist and received nonemployee compensation in the

amount of $41,201.23. Also during 1994, petitioner sold a parcel

of real property for $28,000.

Petitioner did not file a timely 1994 Federal income tax

return and has made no payments regarding his 1994 income tax

liability. On October 16, 1995, petitioner sent a Form 1040NR,

U.S. Nonresident Alien Income Tax Return, to respondent's service

center in Philadelphia, Pennsylvania, which was received on

October 20, 1995. Petitioner's Form 1040NR reported zeros on

most lines, including those for income and tax. Petitioner

altered the jurat and in the space for listing his occupation

stated that he had no occupation within the United States.

On April 18, 1997, respondent mailed a notice of deficiency

to petitioner regarding his 1994 income tax liability. 

Petitioner timely filed his petition with this Court on July 16,

1997. Respondent has made no assessment of tax regarding

petitioner's 1994 Federal income tax.

In July 1997, petitioner mailed a Form 1040, U.S. Individual

Income Tax Return, for the taxable year 1994 to respondent's

service center in Fresno, California. Except for amounts

representing a claimed standard deduction and personal exemption,
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this Form 1040 contained only zeros. Attached to the Form 1040

was a statement by petitioner that contains what can be described

as typical tax protester arguments that have been universally

rejected by the courts. The position that petitioner now argues

on brief was not included in those arguments.

Discussion

Petitioner's argument that the notice of deficiency is

improper because there has never been a proper assessment of tax

regarding his Federal income tax for 1994 has no bearing on the

outcome of these proceedings. It is true that there has been no

assessment of petitioner's 1994 income tax. It follows that

there is no record of such an assessment. The reason why there

has been no assessment is that section 6213(a) prohibits the

Commissioner from making an assessment of a deficiency in income

tax until the expiration of 90 days from the day a notice of

deficiency is mailed. That section goes on to provide that if a

petition to this Court is filed within the aforementioned 90-day

period, no assessment can be made until after the decision of

this Court becomes final. Sec. 6213(a). Thus, the lack of an

existing assessment is in accordance with the statutory

provisions upon which our jurisdiction is based and raises no

impediment to deciding this case on the facts presented. The

facts presented clearly support respondent's deficiency

determination as modified by the previously mentioned concession.
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2Apr. 15, 1995, fell on a Saturday; therefore, petitioner

had until Monday, Apr. 17, 1995, to file a timely 1994 return. 

See sec. 7503.

As to the addition to tax pursuant to section 6651(a) for

failure to file a timely 1994 return, petitioner bears the burden

of proving that it does not apply. Rule 142(a). The facts

establish that petitioner did not file a 1994 return on or before

April 17, 1995.2 Petitioner mailed to respondent a Form 1040NR

that was received by respondent on October 20, 1995. Even if we

were to consider this a return, it was received over 5 months

from the due date, and the maximum addition to tax under section

6651(a) of 5 percent per month, not to exceed 25 percent, would

apply.

At trial, petitioner stated that he believed that he had

filed a request for an extension of time in which to file his

1994 return. Petitioner failed to produce a copy of such a

request. The records of the Internal Revenue Service indicate

that no such request for extension was filed. On the basis of

record, we find that no such request was filed. We therefore

hold that petitioner is liable for the addition to tax under

section 6651(a). 

As to the addition to tax pursuant to section 6654 for

failure to pay estimated income tax, petitioner bears the burden

of proving that it does not apply. Rule 142(a). Petitioner

offered no evidence or argument on this issue. Therefore, we
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hold that petitioner is liable for the addition to tax under

section 6654.

Decision will be entered

under Rule 155.