1 Unless otherwise indicated, all Rule references are to

the Tax Court Rules of Practice and Procedure, and all section

references are to the Internal Revenue Code in effect for the

year in issue. 

T.C. Memo. 2008-107

UNITED STATES TAX COURT

ZELLARD AND CHERYL D. LEMON, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4703-05. Filed April 21, 2008.

Larry D. Harvey, for petitioners.

Randall L. Preheim, for respondent.

MEMORANDUM OPINION

VASQUEZ, Judge: This case is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121.1
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2 Respondent concedes that no penalty pursuant to sec. 6662

is due from petitioners for 2002.

After a concession,2 the sole issue for decision is whether

petitioners can exclude from income wages earned during 2002 from

working in Antarctica. 

Background

At the time they filed the petition, petitioners resided in 

Texas. During 2002, petitioners performed services at McMurdo

Station in Ross Island, Antarctica. On their 2002 Federal income

tax return, petitioners excluded wage income earned and received

during 2002 for services performed in Antarctica. 

Discussion

I. Summary Judgment

Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy. 

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any material fact

and that the legal issues presented by the motion may be decided

as a matter of law. See Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994). We conclude that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of

law.
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3 In Arnett v. Commissioner, 126 T.C. 89 (2006), affd. 473

F.3d 790 (7th Cir. 2007), we concluded our Opinion with a

(continued...)

II. In General

Section 61(a) provides that gross income means all income

from whatever source derived. Accordingly, citizens of the

United States generally are taxed on income earned outside the

geographical boundaries of the United States unless the income is

specifically excluded from gross income. Specking v.

Commissioner, 117 T.C. 95, 101-102 (2001), affd. sub nom. Haessly

v. Commissioner, 68 Fed. Appx. 44 (9th Cir. 2003), affd. sub nom.

Umbach v. Commissioner, 357 F.3d 1108 (10th Cir. 2003). 

Exclusions from income are construed narrowly, and taxpayers must

bring themselves within the clear scope of the exclusion. Id.

III. Section 911

In Arnett v. Commissioner, 126 T.C. 89, 91-96 (2006) (Arnett

I), affd. 473 F.3d 790 (7th Cir. 2007) (Arnett II), we addressed

the arguments made by the parties herein regarding section 911. 

The U.S. Court of Appeals for the Seventh Circuit agreed with our

analysis of section 911 and affirmed our conclusion that

Antarctica is not a “foreign country” pursuant to section 911 and

the regulations thereunder. Arnett v. Commissioner, 473 F.3d at

799. We shall not repeat our analysis from Arnett I herein. We

follow our analysis and holding in Arnett I and the analysis and

holding of the Court of Appeals in Arnett II.3
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3(...continued)

citation of sec. 863(d) suggesting that sec. 863(d) provided an

additional reason to rule against the taxpayer. Id. at 96 (“See

also sec. 863(d) (providing that income earned in Antarctica by a

U.S. person is sourced in the United States).”). In Arnett v.

Commissioner, 473 F.3d at 797, the U.S. Court of Appeals for the

Seventh Circuit addressed sec. 863(d) in greater detail, stating:

At the outset, we think that it is important to

note that considering Antarctica not to be a “foreign

country” is compatible with the general statutory

scheme. Notably, section 911 is found under subtitle

A, chapter 1, subchapter N of the IRC, which is

designated “Tax Based on Income from Sources Within or

Without the United States.” Part I of this subchapter,

entitled “Source Rules and Other General Rules Relating

to Foreign Income,” deems any activity in Antarctica to

be “space or ocean activity.” In turn, the United

States is designated the source country of income from

such activity when earned by a citizen of the United

States. 26 U.S.C. § 863(d). Although this provision

does not provide a definitive answer as to whether

Antarctica is a “foreign country,” it supports the

conclusion that section 911 is not intended to apply to

income earned for services provided in Antarctica. 

We take this opportunity to state our agreement with the Court of

Appeals’ conclusion set forth above. See also HCSC-Laundry v.

United States, 450 U.S. 1, 6 (1981). 

IV. Conclusion

Accordingly, for the reasons stated in Arnett I, Arnett II,

and herein, we conclude that petitioners cannot exclude from

gross income wages earned during 2002 from working in Antarctica.

To reflect the foregoing,

An appropriate order and

decision will be entered.