T.C. Memo. 1998-348

UNITED STATES TAX COURT

ALAN G. VANNOORD, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16142-97. Filed September 30, 1998.

Eric R. Skinner, for respondent.

MEMORANDUM OPINION

FOLEY, Judge: In a notice issued to Alan G. VanNoord on May

1, 1997, respondent determined the following deficiencies in and

additions to Mr. VanNoord's Federal income taxes:

 Additions to Tax 

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

1993 $15,492 $1,067 -- $127

1994 14,745 -- $7,001 450

1995 17,651 -- 13,208 960
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Unless otherwise indicated, 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.

In his petition filed on July 29, 1997, Mr. VanNoord

contested all of respondent's determinations. At the time the

petition was filed, he resided in Grand Rapids, Michigan. Mr.

VanNoord refused to stipulate any facts, appear at trial, or

submit a brief. 

During the years in issue, Mr. VanNoord was employed by

Keebler Co. and earned wages of $67,452, $65,584, and $67,527 for

1993, 1994, and 1995, respectively. In 1995, he also received

$7,913 of rental income from the Michigan Department of

Management and Budget. On January 3, 1994, Mr. VanNoord filed

with Keebler Co. a Form W-4, Employee's Withholding Allowance

Certificate, on which he claimed eight exemptions. Later that

same year, he filed another Form W-4 on which he claimed that he

was exempt from Federal income tax withholding. Because he did

not file a new Form W-4 in 1995, Keebler Co. continued to exempt

him from withholding for that year. Mr. VanNoord failed to file

Federal income tax returns for 1993, 1994, and 1995, but he filed

timely returns for prior years. 

Respondent determined that Mr. VanNoord: (1) Failed to

report wage income for 1993, 1994, and 1995 and rental income for
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1995; (2) is liable, pursuant to section 6651(a)(1), for an

addition to tax for failing to file a Federal income tax return

for 1993; and (3) is liable, pursuant to section 6654, for

additions to tax for failing to make estimated tax payments for

1993, 1994, and 1995. Mr. VanNoord bears the burden of proving

that respondent's determinations are erroneous. Rule 142(a);

Welch v. Helvering, 290 U.S. 111, 115 (1933). Because Mr.

VanNoord failed to offer any evidence, respondent's

determinations relating to these issues are sustained.

Respondent also determined that Mr. VanNoord is liable for

section 6651(f) additions to tax for fraudulently failing to file

his 1994 and 1995 Federal income tax returns. Respondent must

establish, by clear and convincing evidence, that Mr. VanNoord's

failure to file was an attempt to evade tax. Sec. 7454(a);

Clayton v. Commissioner, 102 T.C. 632, 646, 651-653 (1994). A

taxpayer's attempts to conceal income, mislead the Internal

Revenue Service, or prevent the collection of income tax may

establish the requisite fraudulent intent. See Rowlee v.

Commissioner, 80 T.C. 1111, 1123 (1983). 

Mr. VanNoord was aware of his Federal income tax return

filing obligations but failed to file his 1994 and 1995 returns.

During those years, Mr. VanNoord earned wages in excess of

$65,000 and did not have a significant amount of deductible

expenses. Nevertheless, on his Form W-4, Mr. VanNoord claimed
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that he was exempt from withholding, did not have a 1993 tax

liability, and did not expect to have a 1994 tax liability. By

filing this form, which remained in effect for 1995, Mr. VanNoord

attempted to prevent the Internal Revenue Service from collecting

his income tax liability. Moreover, he attempted to evade tax by

failing to file his returns. Accordingly, Mr. VanNoord is liable

for the section 6651(f) additions to tax relating to 1994 and

1995.

To reflect the foregoing,

Decision will be entered

for respondent.