1 Section references are to the Internal Revenue Code as

amended and in effect for the period under consideration. Rule

references are to this Court’s Rules of Practice and Procedure. 

T.C. Memo. 2006-241

UNITED STATES TAX COURT

JOHN S. COOPER, JR., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15613-04. Filed November 9, 2006. 

John S. Cooper, Jr., pro se.

James C. O’Leary, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

GERBER, Judge: Respondent determined an $8,044 deficiency

in petitioner’s 2002 Federal income tax and additions to tax 

under sections 6651(a)(1)1 and 6654(a) in the amounts of

$2,059.13 and $268.26, respectively. Respondent also determined
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2 Petitioner has not made clear how he was not afforded “due

process” or what he means by that term. 

an addition to tax under sec. 6651(a)(2). In his petition,

petitioner questioned the entire deficiency, alleging that

respondent was in error and more specifically that respondent’s

agent had no authority to conduct an examination and that

petitioner was not afforded due process2 during the

administrative examination procedures. Respondent has orally

moved that the Court award sanctions under section 6673, alleging

that petitioner’s position is frivolous and interposed merely for

delay. We consider the following issues in this opinion: (1)

Whether petitioner has shown that respondent’s determination is

in error, and (2) whether petitioner is liable for the additions

to tax under sections 6651(a)(1), 6651(a)(2), and 6654(a); and

(3) whether damages should be awarded under section 6673.
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3 The parties’ stipulation of facts and the exhibits are

incorporated by this reference. At trial, petitioner objected to

the stipulation of facts that he had entered into some time prior

to the scheduled trial date. The stipulation is brief and

contains basic information including the notice of deficiency,

petitioner’s address at the time the petition was filed, and the

facts that he received wage and interest income during 2002. 

Respondent’s counsel told petitioner if he did not stipulate the

income figures, respondent would call witnesses to testify about

those items. Petitioner did not wish having his employer called

to testify and agreed to the stipulation. At trial, petitioner,

claiming duress, attempted to repudiate his agreement and force

respondent to prove the items of income. Under those

circumstances, the Court held that petitioner was bound to his

stipulation and that respondent would be prejudiced if the

stipulation was nullified.

FINDINGS OF FACT3

Petitioner, had his legal residence in Hyattsville,

Maryland, at the time his petition was filed. During 2002

petitioner received wages, in the amount of $51,021 from Equant,

Inc. He also received $16 in interest from Washington Gas Light

Federal Credit Union. Petitioner did not file a Federal income

tax return for the 2001, 2002, or 2003 tax year. On May 28,

2004, respondent mailed to petitioner a statutory notice of

deficiency determining an $8,044 income tax deficiency for

petitioner’s 2002 tax year. In determining the income tax

deficiency, respondent afforded petitioner a $4,700 standard

deduction, one $3,000 personal exemption, and single filing

status to determine the tax rate. 

Petitioner did not make any estimated tax payments for 2002,

and his Federal income tax withholding was limited to $819 for
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4 Respondent has admitted that he has the burden of

production with respect to the additions to tax and penalties. 

See sec. 7491(c). 

the entire year. Respondent prepared a substitute return for

petitioner’s 2002 tax year under section 6020(b). 

OPINION

The main thrust of petitioner’s position is that he owes no

tax because “respondent still has yet to identify a statutory

duty (obligation) to petitioner, which shows a tax due and owing

to the U.S. Treasury.” Petitioner also contends that respondent

has failed to “show who created the Notice of Deficiency * * *,

if the individual had proper authority * * *, or if procedures

were followed in determining a deficiency existed.”

First we address whether respondent has any burden to show

that his determination of the 2002 income tax deficiency is

correct.4 Generally, taxpayers bear the burden of proving that

the Commissioner’s determination is in error. Rule 142(a); Welch

v. Helvering, 290 U.S. 111, 115 (1933). The burden of proof with

respect to a factual issue relevant to liability for tax may

shift to respondent where a taxpayer produces credible evidence

and certain other statutory requirements are met by the taxpayer. 

Sec. 7491(a). In this case, petitioner has not produced any

credible evidence and has not shown that he meets the statutory

criteria for shifting the burden to respondent. 
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Accordingly, petitioner has the burden of showing that

respondent’s income tax deficiency determination is in error. 

Petitioner received income from wages and interest during

his 2002 tax year. Petitioner has made several arguments in

support of his position that respondent’s determination is either

erroneous or “fraudulent”, but he has stipulated and has not

otherwise denied the receipt of the wage and interest income for

his 2002 tax year. We note that all of petitioner’s arguments

are specious and without substance, and many of them have been

offered by others who are merely attempting to avoid the payment

of Federal tax. Accordingly, we hold that petitioner has not

shown that respondent’s $8,044 income tax determination is in

error.

Next, we consider whether petitioner is liable for additions

to tax under section 6651(a)(1) and (2) for failure to file a

2002 income tax return or to pay the tax due for that year. 

Section 6651(a)(1) provides for an addition to tax for failure to

file, unless it is shown that the failure is due to reasonable

cause and not due to willful neglect. Similarly, section

6651(a)(2) provides for an addition to tax for failure to pay the

amount shown as tax on any return, unless it is shown that the

failure is due to reasonable cause and not due to willful

neglect. 
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Respondent has satisfied his burden of production with

respect to the addition to tax under section 6651(a)(1) by means

of documents and testimony showing that petitioner failed to file

a 2002 Federal tax return. In addition, respondent caused to be

prepared, for petitioner’s 2002 tax year, a substitute return

under the criteria of section 6020(b). See Cabirac v.

Commissioner, 120 T.C. 163, 170-173 (2003). Accordingly,

respondent has met his burden of producing evidence that would

support an addition for failure to pay the tax due for that year

under section 6651(a)(2). Petitioner presented no evidence

showing that his failure to file or pay was due to reasonable

cause and not due to willful neglect. As already mentioned,

petitioner has advanced several specious arguments as to why he

should not have to file or pay tax. None of his arguments

suffice to show that he had “reasonable cause” for his failure to

file or pay. Accordingly, we hold that petitioner is liable for

the additions to tax for failure to file and failure to pay under

section 6651(a)(1) and (2), respectively. 

Next, we consider whether petitioner is liable for the

addition to tax under section 6654(a) for failure to make

estimated payments. The required annual payment of estimated

tax, as it relates to this case, equals 90 percent of

petitioner’s tax for 2002. Sec. 6654(d)(1)(B)(i). Petitioner’s
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5 Other measures of the required annual payment are

inapplicable because respondent produced evidence that petitioner

failed to file a return for his 2001 and 2002 tax years. See

sec. 6654(d)(1)(B)(i) and (ii); Nicholls v. Commissioner, T.C.

Memo. 2006-218.

income tax deficiency for 20025 is $8,044 (“required annual

payment”), petitioner’s withholding from wages was $819, and he

made no payments of estimated tax. Clearly he has not made the

required annual payment of the statute. There are other

exceptions to the obligation to make estimated tax payments set

forth in section 6654, but we do not find that petitioner comes

within those exceptions. Accordingly, we hold that petitioner is

liable for the section 6654(a) addition to tax for failure to

make estimated tax payments.

Finally, we consider respondent’s oral motion that sanctions

be awarded under section 6673 due to petitioner’s advancing

frivolous and groundless arguments and/or maintaining this

proceeding for delay. On at least two occasions prior to trial,

respondent advised petitioner that section 6673 sanctions would

be sought in this case. On brief, petitioner contended that his

position is not frivolous. He states: “Mere questions about

what laws, information, and procedures the respondent 

relied upon to conclude a deficiency exists [do] not constitute a

frivolous position or argument.” 

Petitioner here has made a concentrated effort to avoid the

payment of his Federal tax obligation. He did not file a 2002
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return and his withholding was limited. Throughout petitioner’s

dealings with respondent and the Court, he provided nothing but

specious and well-worn arguments, all of which represent nothing

more that a baseless collateral attack on the real question of

whether he had a Federal tax liability for 2002. The vast

majority of petitioner’s arguments have already been addressed by

this and other courts and are not worthy of further analysis by

this Court. The remainder are irrelevant to the question we

consider.

At trial, petitioner attempted to thwart the litigation

process by attempting to withdraw from his agreed stipulation at

the last minute. He presented no evidence or meaningful

testimony at the trial and merely forced respondent and the Court

to the expense and use of time to air his groundless and

sophistic technical arguments, all of which were designed to

delay the reporting and payment of petitioner’s 2002 tax

liability. Taxpayers, who have been issued a notice of

deficiency, have a right to avail themselves of this Federal tax

forum. Petitioner, by his failure to present evidence and the

frivolousness of his argument has abused that right. It appears

to the Court that the only reason petitioner pursued this

litigation is for the purpose of delay.

Under those aggravated circumstances, we hold that

petitioner is liable for a $10,000 penalty under section 6673.
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To reflect the foregoing,

Order and decision will be

entered for respondent.