T.C. Memo. 2021-31

UNITED STATES TAX COURT

BRIAN E. HARRISS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 23017-17, 5690-18. Filed March 11, 2021.

Brian E. Harriss, pro se.

John T. Arthur and Courtney S. Bacon, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

THORNTON, Judge: By separate notices of deficiency, respondent

determined deficiencies in petitioner’s Federal income tax and section 6662(a)

accuracy-related penalties as follows:

1

1All monetary amounts are rounded to the nearest dollar. All Rule

references are to the Tax Court Rules of Practice and Procedure, and all section

(continued...)

Served 03/11/21
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Year Deficiency

Penalty

sec. 6662(a)

2012 $31,862 $1,737

2013 46,692 9,100

2014 43,730 8,391

After concessions,

2

the issues for decision in these consolidated cases are:

(1) whether the notices of deficiency are valid; (2) whether petitioner had

unreported gross income for taxable years 2013 and 2014 as respondent

determined; and (3) whether for taxable year 2013 petitioner is liable under

section 72(t) for a 10% additional tax on an early distribution from a qualified

retirement plan.

FINDINGS OF FACT

During 2012, 2013, and 2014, CH2M Hill Alaska, Inc. (CH2M), paid

petitioner $146,003, $149,802, and $165,011, respectively, for services performed

and reported these amounts on Forms W-2, Wage and Tax Statement. In 2014

Anvil Corp. (Anvil) paid petitioner $10,589 for services performed and reported

this amount on Form W-2.

[*2]

1

(...continued)

references are to the Internal Revenue Code in effect for the years at issue.

2Respondent has conceded that the limitations period has expired for taxable

year 2012 and has also conceded the sec. 6662(a) penalties for all years at issue.
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[*3] On Form 1099-R, Distributions From Pensions, Annuities, Retirements or

Profit-Sharing Plans, IRAs, Insurance Contracts, etc., Fidelity Investments

(Fidelity) reported that in 2013 it made a retirement plan distribution to petitioner

of $36,830. The distribution code on this form described the distribution as an

“Early distribution, no known exception (in most cases, under age 591⁄2)” and

stated that the “[t]axable amount” was $36,830.

On April 15, 2014, petitioner untimely filed his Form 1040, U.S. Individual

Income Tax Return, for taxable year 2012, reporting zero wages and claiming a

$30,152 refund for all his reported withholdings for income, Social Security, and

Medicare taxes. Attached to petitioner’s 2012 Form 1040 was Form 4852,

Substitute for Form W-2, Wage and Tax Statement, or Form 1099-R, Distributions

From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance

Contracts, etc., by which petitioner purported to correct the Form W-2 from

CH2M so as to report wages, tips, and other compensation of zero. Petitioner also

attached to his 2012 Form 1040 a letter addressed to the Department of the

Treasury, disputing the $146,003 that CH2M had reported as wages and stating:

“My activities in 2012 involved entirely private arrangements and did not involve

the exercise of any federal privilege or the receipt of any federally-connected gain

or benefit.” 
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[*4] Petitioner’s Form 1040 for taxable year 2013 reported zero wages and zero

taxable IRA distributions; he claimed a $10,410 refund for all his reported

withholdings for income, Social Security, and Medicare taxes. Attached to this

Form 1040 was Form 4852, by which petitioner purported to correct the Form W-2

from CH2M so as to report wages, tips, and other compensation of zero. In a letter

attached to his 2013 Form 1040 petitioner explained the purpose of this Form

4852 as--

correcting a W-2 form that reported a payment to me of wages as

defined in the Code. The amount of $149,802.00 originally reported

is incorrect and is hereby disputed. The payer, CH2M HILL Alaska,

Inc. is a company incorporated in the state of Alaska with whom I

worked under a private arrangement on non-trade or business

activities. 

Also attached to petitioner’s 2013 Form 1040 was Form 4852, by which petitioner

purported to correct the Form 1099-R from Fidelity so as to report Fidelity’s

$36,830 distribution to him as nontaxable. A letter attached to petitioner’s 2013

Form 1040 explained that the purpose of this Form 4852 was to correct the Form

1099-R that “erroneously reported IRC 6047 transactions.” 

Petitioner’s Form 1040 for taxable year 2014 reported zero wages and

claimed a $12,230 refund for all his reported withholdings for income, Social

Security, and Medicare taxes. Attached to this Form 1040 were Forms 4852, by
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[*5] which petitioner purported to correct the Forms W-2 from CH2M and Anvil

so as to report wages, tips, and other compensation of zero.

On August 2, 2017, the Internal Revenue Service (IRS) issued to petitioner

a notice of deficiency for taxable year 2012, determining a deficiency of $31,862. 

The notice explained that the IRS had adjusted petitioner’s gross wages to

$146,003 as shown on Form W-2.

 On August 22, 2017, the IRS issued to petitioner a notice of deficiency for

taxable year 2013, determining a deficiency of $46,692. The notice explained that

the IRS had adjusted petitioner’s gross wages to $149,802 as shown on Form W-2.

The notice also adjusted petitioner’s gross income to include the $36,830

distribution reported by Fidelity on Form 1099-R and imposed $3,683 of

additional tax for an early distribution, pursuant to section 72(t).

On December 20, 2017, the IRS issued to petitioner a notice of deficiency

for taxable year 2014, determining a deficiency of $43,730. The notice explained

that the IRS had adjusted petitioner’s gross wages to $175,600 as shown on Forms

W-2.

The signature blocks for the notices of deficiency for taxable years 2012,

2013, and 2014 each state identically “Commissioner By Christine L. Davis, 
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[*6] Program Manager, Return Integrity and Compliance Services, Integrity and

Verification Operation” and include the signature of Christine L. Davis.

 Petitioner, while residing in Alaska, timely filed petitions commencing

these cases, which were subsequently consolidated and set for trial.

3

 About two

weeks before the scheduled trial date petitioner filed a motion to dismiss these

cases for lack of jurisdiction. The Court held a hearing on petitioner’s motion to

dismiss in conjunction with the previously scheduled trial. Petitioner chose not to

testify at the trial, pleading the Fifth Amendment in response to respondent’s

questions.

OPINION

I. Validity of Notices of Deficiency

Petitioner has moved to dismiss these cases on the ground that the notices of

deficiency are invalid. With respect to taxable years 2013 and 2014 he asserts that

3On July 17, 2019, petitioner filed a motion for summary judgment,

asserting among other things that the applicable limitations period for assessment

had expired for his taxable year 2012. In response, respondent conceded that the

2012 limitations period had expired. Respondent also conceded the sec. 6662(a)

penalty for each of petitioner’s taxable years 2012, 2013, and 2014. On the basis

of respondent’s concessions, on August 22, 2019, the Court granted petitioner’s

motion for summary judgment as it relates to the deficiency for his taxable year

2012 and as it relates to the sec. 6662(a) penalties for all years at issue but denied

petitioner’s motion for summary judgment as it relates to his deficiencies for

taxable years 2013 and 2014.
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[*7] the notices are invalid because, he says, the signer of these notices, Christine

L. Davis, lacked proper delegated authority to sign and issue them.

4

Section 6212(a) provides: “If the Secretary determines that there is a

deficiency in respect of any tax imposed by subtitles A or B or chapter 41, 42, 43,

or 44 he is authorized to send notice of such deficiency to the taxpayer by certified

4Although Christine L. Davis also signed the 2012 notice of deficiency,

petitioner has not expressly asserted that it is invalid for lack of proper delegated

authority. Rather, insofar as he challenges this Court’s jurisdiction as to his 2012

taxable year, petitioner appears to rely upon respondent’s statement, in his

response to petitioner’s motion for summary judgment, that the 2012 notice of

deficiency “was untimely and therefore invalid.” Notwithstanding respondent’s

ill-considered statement, our jurisdiction is not implicated by our accepting

respondent’s concession as to the expiration of the limitations period for 2012. 

“[I]t is well established that the issuance of a notice of deficiency beyond the

statute of limitations period does not [a]ffect its validity. The statute of limitations

is a defense in bar and not a plea to the jurisdiction of this Court.” Genesis Oil &

Gas, Ltd. v. Commissioner, 93 T.C. 562, 564 (1989); see Tapper v. Commissioner,

766 F.2d 401, 403 (9th Cir. 1985); Domulewicz v. Commissioner, 129 T.C. 11, 12

n.4 (2007), aff’d in part, remanded in part on other grounds sub nom. Desmet v.

Commissioner, 581 F.3d 297 (6th Cir. 2009); Crowell v. Commissioner, 102 T.C.

683, 693 (1994); United Bus. Corp. of Am. v. Commissioner, 19 B.T.A. 809, 831

(1930) (“[T]he proposition that a statute of limitations is a defense in bar and not a

plea to the jurisdiction would seem to require no citation.”), aff’d, 62 F.2d 754 (2d

Cir. 1933). Indeed, our granting of petitioner’s motion for summary judgment in

part as it relates to his 2012 taxable year depends upon our having jurisdiction

over that year. In any event, because the signature block of the 2012 notice of

deficiency is essentially identical to the signature blocks of the 2013 and 2014

notices of deficiency, our analysis with respect to the validity of the 2012 notice of

deficiency, if petitioner had expressly challenged it on the ground of lack of

proper delegated authority (which he has not), would be essentially identical to our

analysis with respect to the 2013 and 2014 notices of deficiency.
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[*8] mail or registered mail.” Section 7701(a)(11)(B) defines “Secretary” to mean

“the Secretary of the Treasury or his delegate.” In this context “delegate” means

“any officer, employee, or agency of the Treasury Department duly authorized by

the Secretary of the Treasury directly, or indirectly by one or more redelegations

of authority, to perform the function mentioned or described in the context”. Sec.

7701(a)(12)(A)(i).

By regulations the Secretary has extended the authority to determine

deficiencies and to issue notices of deficiency to the Commissioner of Internal

Revenue and to district directors, directors of service centers, and regional

directors of appeals. See secs. 301.6212-1(a), 301.7701-9, Proced. & Admin.

Regs. These regulations authorize the Commissioner to redelegate the

performance of such functions to other officers or employees under his

supervision and control; the Commissioner may also authorize further delegation

of such authority by his delegates. See sec. 301.7701-9(c), Proced. & Admin.

Regs. As permitted by these regulations, the authority to sign and issue notices of

deficiency has been redelegated under Delegation Order 4-8, Internal Revenue

Manual (IRM) pt. 1.2.43.9(1), (2), and (3) (Sept. 4, 2012). The list of positions

authorized under Delegation Order 4-8 includes “Department Managers, Campus
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[*9] Compliance Services (Small Business/Self-Employed)” and “Director,

Return, Integrity and Compliance Services (Wage & Investment).” Id.

The notices of deficiency in question were signed on behalf of the

Commissioner by Ms. Davis in her capacity as “Program Manager, Return

Integrity and Compliance Services, Integrity and Verification Operation”. The

notices are in all respects standard and exhibit no irregularities of any kind. 

Significantly, in Jagos v. Commissioner, 2018 WL 3421087 (6th Cir. June 21,

2018), aff’g per order T.C. Memo. 2017-202, the Court of Appeals for the Sixth

Circuit held that Ms. Davis, in her capacity as a program manager, had the

requisite authority under Delegation Order 4-8 to issue notices of deficiency.

5

 

Nevertheless, petitioner argues that the 2013 and 2014 notices of deficiency

are invalid because, he says, Ms. Davis lacked delegated authority to issue them. 

Petitioner bears the burden of proof in this regard. See Perlmutter v.

5

In its order affirming this Court’s decision, the Court of Appeals for the

Sixth Circuit stated: “The program manager that issued the Jagoses’ deficiency

notice was a delegate of the Secretary for this purpose [of issuing notices of

deficiency]. IRM 1.2.43.9(3) (Sept. 4, 2012).” Jagos v. Commissioner, 2018 WL

3421087 (6th Cir. June 21, 2018), aff’g per order T.C. Memo. 2017-202. We take

judicial notice of this Court’s records, which show that Christine L. Davis signed

the notice of deficiency upon which Jagos was predicated and that, just as in the

instant case, Ms. Davis signed the notice on behalf of the Commissioner in her

capacity as “Program Manager, Return Integrity and Compliance Services,

Integrity and Verification Operation”. 
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[*10] Commissioner, 44 T.C. 382, 399 (1965), aff’d, 373 F.2d 45 (10th Cir. 1967). 

Petitioner bears this burden of proof partly because it is he who has moved to

dismiss these cases for lack of jurisdiction, and the “normal evidentiary rule”

imposes proof obligations on him as the moving party. Lillis v. Commissioner,

T.C. Memo. 1983-142 (quoting United States v. Rexach, 482 F.2d 10, 16 (1st Cir.

1973)), aff’d without published opinion, 740 F.2d 974 (9th Cir. 1984). More

fundamentally, however, petitioner bears the burden of proof because of the

presumption of official regularity. See id. “Whenever an official has acted, it is

presumed ‘that whatever is required to give validity to the official’s act in fact

exists.’” Id. (quoting Borg-Warner Corp. v. Commissioner, 660 F.2d 324, 330

(7th Cir. 1981), rev’g T.C. Memo. 1979-350); see Kohli v. Gonzales, 473 F.3d

1061, 1068 (9th Cir. 2007) (applying the “well established principle of federal law

that administrative agencies are entitled to a presumption that they ‘act properly

and according to law’” (quoting FCC v. Schreiber, 381 U.S. 279, 296 (1965)));

Mecom v. Commissioner, 101 T.C. 374, 388 (1993) (“[P]ublic officials are

presumed to have properly discharged their official duties.”), aff’d, 40 F.3d 385

(5th Cir. 1994). As the Supreme Court has stated: “Acts done by a public officer

‘which presuppose the existence of other acts to make them legally operative, are

presumptive proofs of the latter.’” R.H. Stearns Co. of Bos., Mass. v. United
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[*11] States, 291 U.S. 54, 63 (1934) (quoting Bank of the United States v.

Dandridge, 25 U.S. (12 Wheat.) 64, 70 (1827)).6

Petitioner has offered no evidence that Ms. Davis lacked delegated authority

to issue the notices of deficiency. Rather, he relies primarily on the fact that the

notices show Ms. Davis’ position as “Program Manager, Return Integrity and

Compliance Services, Integrity and Verification Operation”--a position not

expressly listed among those to which Delegation Order 4-8 delegates authority to

sign and issue notices of deficiency.

7

6Petitioner relies on Muncy v. Commissioner, 637 F. App’x 276 (8th Cir.

2016), vacating and remanding T.C. Memo. 2014-251, in support of the argument

that respondent has the burden to demonstrate that the notices were issued with

proper authority. Petitioner’s reliance on precedent from the U.S. Court of

Appeals for the Eighth Circuit is misplaced given that any appeal in these cases

would presumably lie with the U.S. Court of Appeals for the Ninth Circuit. See

sec. 7482(b); Golsen v. Commissioner, 54 T.C. 742, 757 (1970) (stating that we

generally “follow a Court of Appeals decision which is squarely in point where

appeal from our decision lies to that Court of Appeals and to that court alone”),

aff’d, 445 F.2d 985 (10th Cir. 1971). As discussed above, consistently with Ninth

Circuit precedent our decisions require the taxpayer to demonstrate that the

Commissioner or his delegates have not properly discharged their official duties.

7Petitioner also argues that Ms. Davis lacked the authority to sign the

notices of deficiency because, he says, the appearance of her employee

identification number in attachments to the notices shows that she was the “Tax

Examiner”. Petitioner cites Internal Revenue Manual (IRM) pt. 4.8.9.6.1(3) (July

9, 2013): “Tax examiners are not authorized to sign notices.” The quoted material

upon which petitioner relies appears in an IRM chapter that applies to “Small

Business and Self-Employed (SB/SE) Technical Services employees”, IRM pt.

(continued...)
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[*12] There is no statutory requirement, however, that evidence of delegated

authority be embodied in Delegation Order 4-8 or any other particular document. 

The regulations provide the Commissioner a wide range of administrative

discretion to redelegate to officers or employees under his supervision and control

the performance of functions such as issuing notices of deficiency. See sec.

301.7701-9(c), Proced. & Admin. Regs.

8

 Consequently, the mere fact that Ms.

Davis’ position is not expressly listed in Delegation Order 4-8 does not dislodge

the presumption of official regularity.

7

(...continued)

4.8.9 (Aug. 11, 2016) (“AUDIENCE”); “Tax examiners” are expressly identified

in this chapter as one of several enumerated categories of “Technical Services

employees” authorized to prepare notices of deficiency, IRM pt. 4.8.9.6(1) (July 9,

2013). There is no indication in the record that Ms. Davis was at any relevant time

a Technical Services employee to whom this IRM chapter would apply. More

fundamentally: “The IRM lacks the force of law and does not create rights for

taxpayers.” Weiss v. Commissioner, 147 T.C. 179, 196 (2016), aff’d, 2018 WL

2759389 (D.C. Cir. May 22, 2018); see Urban v. Commissioner, 964 F.2d 888,

890 (9th Cir. 1992) (“[C]ompliance with the IRM’s requirements is not

mandatory[.]”), aff’g T.C. Memo. 1991-220. Consequently, even if we were to

assume for the sake of argument that the cited IRM directive applied to Ms. Davis,

it would not render invalid her performance of functions she was otherwise

authorized to perform with respect to the notices of deficiency. See sec. 301.7701-

9(c), Proced. & Admin. Regs.

8Although Delegation Order 4-8, IRM pt. 1.2.43.9(4) (Sept. 4, 2012), states

that the authority delegated therein “may not be redelegated”, this restriction does

not apply to the Commissioner, whose delegated authority and authority to

redelegate arises not from any delegation order but rather from regulations. See

secs. 301.6212-1(a), 301.7701-9(c), Proced. & Admin. Regs. 
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[*13] As respondent explains, before 2015 Department Managers in Campus

Compliance Services (Small Business/Self-Employed Division) oversaw the

Frivolous Return Program. See IRM pt. 1.4.29.1 (Nov. 12, 2013), pt. 25.1.14.2(4)

(Apr. 1, 2016), pt. 25.25.10.1.3(2) (Sept. 15, 2017). As the result of an IRS

reorganization in 2014, responsibility for the Frivolous Return Program was

moved to the Wage and Investment Division, Return Integrity and Compliance

Services, Integrity and Verification Operation. See IRM pt. 25.1.14.2(4) (Apr. 1,

2016), pt. 25.25.10.1.3 (Sept. 15, 2017). Respondent states that as a result of this

reorganization, Ms. Davis’ “authority as ‘Program Manager, Return Integrity and

Compliance Services’ derived from the title ‘Department Manager’, Campus

Compliance Services,’ a position which is listed in Delegation Order 4-8.”

Respondent directs us to IRM pt. 1.11.4.6(1)(3) (note) (Oct. 10, 2008), which

states: “If, during a reorganization, position titles change, without substantive

change in responsibility, a delegation order is still effective for the new position

title until the delegation order is revised.”

The circumstances and context of the 2014 IRS reorganization and this IRM

directive lend support to the presumption of official regularity sufficient to sustain

the inference that Ms. Davis possessed delegated authority to sign and issue the

notices of deficiency. Cf. R.H. Stearns Co. of Bos., Mass., 291 U.S. at 58-64
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[*14] (holding that a waiver of the limitations period was effective although not

signed by the Commissioner until after the limitations period had expired, stating

that “the presumption of official regularity was sufficient to sustain the inference

that the Commissioner on his side had done whatever was appropriate to give

support to his own act” and that “[c]hoice between two doubts should be made in

such a way as to favor the presumption of official regularity”); United States v.

Ahrens, 530 F.2d 781, 786 n.8 (8th Cir. 1976) (noting that, in accordance with

customary principles governing evidentiary presumptions, application of the

presumption of official regularity “rests upon probabilities, not certainties”). 

Petitioner has failed to meet his burden of proof to overcome the presumption of

official regularity and show that Ms. Davis lacked such delegated authority.

Moreover, as respondent points out, the courts have consistently rejected, in

a variety of contexts, challenges to delegated authority to sign and issue notices of

deficiency. For instance, the Court of Appeals for the Ninth Circuit rejected an

argument that a notice of deficiency was invalid because it was not “properly

signed” as required by the IRM; the Court of Appeals explained: (1) “The Internal

Revenue Code does not require the notice of deficiency to be signed” and (2) the

Commissioner’s “compliance with the IRM’s requirements is not mandatory.”

Urban v. Commissioner, 964 F.2d 888, 889-890 (9th Cir. 1992), aff’g T.C. Memo.
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[*15] 1991-220. Similarly, the Court of Appeals for the Fifth Circuit rejected a

taxpayer’s argument that a notice of deficiency was invalid because the IRS

employee who signed it lacked authority to do so; the Court of Appeals stated:

“The existence of a signature or the identity of any IRS official who provides one,

is superfluous.” Selgas v. Commissioner, 475 F.3d 697, 699-700 (5th Cir. 2007)

(emphasis added); see also Tavano v. Commissioner, 986 F.2d 1389, 1390 (11th

Cir. 1993) (holding that an unsigned notice of deficiency received by the taxpayer

was valid because it “adequately advised him that the Commissioner intended to

assess him, notwithstanding that the notice was unsigned”), aff’g T.C. Memo.

1991-237; Commissioner v. Oswego Falls Corp., 71 F.2d 673, 677 (2d Cir. 1934)

(holding that an unsigned notice of deficiency was valid and stating that “[t]he

statute does not require that it be signed”); Batsch v. Commissioner, T.C. Memo.

2016-140 (rejecting as frivolous the taxpayer’s argument that notices of deficiency

were invalid because they were signed by IRS employees who lacked proper

delegated authority), aff’d sub nom. Hyde v .Commissioner, 695 F. App’x 166

(8th Cir. 2017); Banister v. Commissioner, T.C. Memo. 2015-10, at *9 (rejecting

as frivolous the taxpayer’s argument that the notice of deficiency was invalid

because it was “not signed by an authorized person” and imposing a penalty under
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[*16] section 6673), aff’d, 664 F. App’x 673 (9th Cir. 2016) (imposing an

additional penalty under section 6673).

We conclude and hold that the subject notices of deficiency are valid.

Consequently, we will deny petitioner’s motion to dismiss these cases for lack of

jurisdiction.

II. Unreported Income

The Commissioner’s determinations in a notice of deficiency are generally

presumed correct, and the taxpayer bears the burden of proving those

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

115 (1933). In cases involving failure to report income, the U.S. Court of Appeals

for the Ninth Circuit has held that the Commissioner must establish “some

evidentiary foundation” linking the taxpayer to an alleged income-producing

activity before the presumption of correctness attaches to the deficiency

determination. Weimerskirch v. Commissioner, 596 F.2d 358, 361-362 (9th Cir.

1979), rev’g 67 T.C. 672 (1977). Once the Commissioner has established such a

foundation, the burden of proof shifts to the taxpayer to prove by a preponderance

of the evidence that the IRS’ determinations are arbitrary or erroneous. See Hardy

v. Commissioner, 181 F.3d 1002, 1004 (9th Cir. 1999), aff’g T.C. Memo. 1997-97.
- 17 -

[*17] Respondent determined that for taxable years 2013 and 2014 petitioner

received wages in the amounts that CH2M and Anvil reported to the IRS on Forms

W-2. Respondent also determined that for taxable year 2013 petitioner received a

$36,830 taxable distribution from a qualified retirement plan as Fidelity reported

on Form 1099-R. Petitioner stipulated that he worked for CH2M during 2013 and

2014 and that he worked for Anvil in 2014. CH2M’s payroll report and payroll

register show it paid petitioner $149,802 in 2013 and $165,011 in 2014. Anvil’s

payroll journal shows it paid petitioner $10,589 in 2014. Fidelity’s canceled

check shows it paid petitioner $36,830 in 2013. Petitioner attached a Form 4852

to his 2013 tax return indicating that he had received a $36,830 distribution from

Fidelity. On the basis of all this evidence, we have no difficulty concluding that

respondent has established an adequate evidentiary foundation for the unreported

income. The burden of proof thus shifts to petitioner to show that respondent’s

determinations were erroneous.

9

9Sec. 6201(d) provides that if, in any court proceeding, a taxpayer fully

cooperates with the Commissioner and raises a reasonable dispute with respect to

an information return, the Commissioner has the burden of producing reasonable

and probative evidence to verify the information return. Petitioner has not raised a

reasonable dispute under sec. 6201(d) with respect to any item of income reported

on the information returns upon which respondent’s adjustments are based. 
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[*18] Petitioner has not satisfied his burden of proof. He does not deny receiving

the amounts in question and makes no meaningful argument to show why the

income he received was not taxable.10 Cf. sec. 61(a) (gross income includes “all

income from whatever source derived”). We conclude that respondent's

determinations of unreported income as set forth in the notices of deficiency for

2013 and 2014 are correct, and those determinations are sustained. See Hardy v.

Commissioner, 181 F.3d at 1004.

III. Section 72(t) Additional Tax

When a taxpayer receives a distribution from a qualified retirement plan,

section 72(t)(1) generally provides that his tax shall be increased “by an amount

equal to 10 percent of the portion of such amount which is includible in gross

income.” The statute provides various exceptions, e.g., where the taxpayer

receiving the distribution has attained the age of 591⁄2. See sec. 72(t)(2)(A)(i).

10At various points in these proceedings petitioner has raised frivolous and

groundless arguments similar or identical to those that he raised--and that this

Court and the Court of Appeals for the Ninth Circuit rejected--in a previous case

relating to his 2010 and 2011 taxable years, Harriss v. Commissioner, T.C. Memo.

2017-5, aff’d, 776 F. App’x 425 (9th Cir. 2019). In that earlier case this Court

cautioned petitioner that if he continued to advance frivolous or groundless

arguments he might incur substantial penalties under sec. 6673(a). Id. at *15. We

renew that warning today. 
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[*19] Because section 72(t) imposes a “tax” rather than a “penalty”, “addition to

tax”, or “additional amount” within the meaning of section 6751(b) and (c) or

section 7491(c), petitioner has the burden of production on this issue. See

Grajales v. Commissioner, 156 T.C. __ (Jan. 25, 2021) (holding that the

Commissioner is not required to show written supervisory approval under section

6751(b) of a section 72(t) exaction); El v. Commissioner, 144 T.C. 140, 145-149

(2015) (holding that the Commissioner bears no burden of production under

section 7491(c) as to the section 72(t) exaction). In particular, petitioner bears the

burden of proving entitlement to any exception under section 72(t)(2)(A). See

Bunney v. Commissioner, 114 T.C. 259, 265-266 (2000).

Petitioner has alleged no facts and produced no evidence showing that he

had attained the age of 591⁄2 when he received the distribution or that any other

statutory exception applies. Accordingly, we will sustain respondent's

determination that for taxable year 2013 petitioner is liable for an additional tax of

$3,683 under section 72(t).

To reflect the foregoing and respondent’s concessions,

An appropriate order and appropriate

decisions will be entered.