1 All section references are to the Internal Revenue Code

in effect for the years at issue. All Rule references are to the

Tax Court Rules of Practice and Procedure.

T.C. Memo. 1996-339

UNITED STATES TAX COURT

FRANK C. VERBECK, JR., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1760-96. Filed July 29, 1996.

Frank C. Verbeck, Jr., pro se.

Mark A. Weiner, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Larry L. Nameroff pursuant to section 7443A(b)(4) of the

Code1 and Rules 180, 181, and 183. The Court agrees with and
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adopts the opinion of the Special Trial Judge, which is set forth

below.

OPINION OF THE SPECIAL TRIAL JUDGE

NAMEROFF, Special Trial Judge: This case is before us on

respondent's Motion to Dismiss For Failure to State a Claim and

to Impose a Penalty Under Section 6673. Respondent determined

deficiencies in petitioner's Federal income taxes and additions

to tax as follows:

 Additions to Tax 

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

1989 $2,504 $626 $168

1990 9,268 2,317 613

1991 7,136 1,784 410

1992 8,020 2,005 349

1993 6,065 1,516 256

1994 2,315 463 119

The adjustments giving rise to the above deficiencies and

additions to tax are based upon the failure of petitioner to file

income tax returns and report his income for the subject years. 

The nature of the unreported income determined by respondent in

the two notices of deficiency is "nonemployment compensation" in

all 6 years, plus "imputed income" for the years 1990 through

1993 based upon Bureau of Labor statistics. 

The gist of petitioner's allegations in his petition is

that: (1) "The Commissioner and/or his delegate has erroneously

and arbitrarily concluded that Frank C. Verbeck, Jr. is a citizen
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2 Petitioner alleges that he is an American citizen, but

not a U.S. citizen. Petitioner's address set forth in the

petition is in Sun Valley, California.

of the United States"2 and "liable for the taxes levied by the

United States Congress"; (2) the "Commissioner arbitrarily and

erroneously determined that petitioner received income"; and (3)

the United States Tax Court lacks the authority to render a

decision in this case because it is not an Article III Court

under the Constitution, and, therefore, without jurisdiction. 

Petitioner makes further allegations in the petition, which are

common in tax protester petitions, regarding the allegedly

unconstitutional nonapportioned direct tax, the applicability of

the Administrative Procedure Act, and the method in which he was

selected for audit, as well as the audit techniques utilized by

respondent.

In her motion to dismiss, respondent contends that the

petition fails to allege clear and concise assignments of error

in respondent's deficiency determination in violation of Rule

34(b)(4). Further, respondent contends that the petition fails

to allege clear and concise lettered statements of fact on which

petitioner bases the assignments of error, in violation of Rule

34(b)(5). 

The Court scheduled a hearing on the motion for May 13,

1996, in Los Angeles, California. On that date petitioner did

not appear, but instead filed a Statement in Lieu of Appearance
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pursuant to Rule 50(c). In the Rule 50(c) statement, petitioner

challenged the "PERSONAM JURISDICTION" of this Court and made

further tax protester allegations, which need not be repeated

herein. 

Petitioner has been here before in connection with his 1986

and 1987 tax years. Verbeck v. Commissioner, T.C. Memo. 1995-14,

affd. without published opinion 70 F.3d 122 (9th Cir. 1995). In

that case we dismissed a similar petition for failure to state a

claim and required petitioner to pay a $5,000 penalty pursuant to

section 6673. In that case and in the instant case, petitioner

made tax protester arguments that have been heard by this Court

on many occasions and rejected. See e.g., McCoy v. Commissioner,

76 T.C. 1027 (1981), affd. 696 F.2d 1234 (9th Cir. 1983); Brayton

v. Commissioner, T.C. Memo. 1989-664, affd. without published

opinion 923 F.2d 861 (9th Cir. 1991). As before, the short

answer to petitioner's arguments is that he is not exempt from

Federal income tax. See Abrams v. Commissioner, 82 T.C. 403,

406-407 (1984). 

A judgment on the pleadings is appropriate where petitioner

raises no justiciable issues. See Abrams v. Commissioner, supra

at 408; Brayton v. Commissioner, supra. Petitioner has failed to

raise any issue with regard to the amount of his income or

deductions, or the correct amount of his tax liability, including

the additions to tax. Accordingly, he has not raised any
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justiciable issues, and respondent's motion to dismiss will be

granted.

Section 6673 authorizes this Court to impose a penalty in

favor of the United States, in an amount not to exceed $25,000

whenever it appears that the taxpayer's position in a proceeding

is frivolous, groundless, or instituted primarily for delay. 

Petitioner's actions are clearly frivolous. Indeed, his only

apparent reason to file a petition with this Court to challenge

our jurisdiction was to delay assessment and collection of his

income tax liabilities. Accordingly, we will require petitioner

to pay to the United States a penalty of $10,000 pursuant to

section 6673.

An appropriate order

and decision will be 

entered for respondent.