T.C. Memo. 1995-475

UNITED STATES TAX COURT

MAURICE H. SOCHIA AND BEATRICE M. SOCHIA, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 26675-93. Filed October 4, 1995.

Maurice H. Sochia and Beatrice M. Sochia, pro sese.

T. Richard Sealy III, for respondent.

MEMORANDUM OPINION

KÖRNER, Judge: Respondent determined deficiencies in and

additions to petitioners' Federal income taxes for the years and

in the amounts as follows:

 Additions to Tax

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

 1990 $21,079 $4,638 $1,204

 1991 13,798 3,450 790

 All statutory references are to the Internal Revenue Code

in effect for the years in issue, and all Rule references are to
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the Tax Court Rules of Practice and Procedure, except as

otherwise noted.

In the petition as originally filed herein, petitioners

alleged that they were residents and citizens of Texas and were

not subject to United States taxes; that they filed "Fifth

Amendment" returns of income and were justified in doing so; that

the U.S. tax system is voluntary and petitioners have not elected

to file returns thereunder; that petitioners do not understand

the legal requirements of filing income tax returns; and

petitioners further alleged certain amounts with respect to their

gross receipts, adjustments to gross receipts, deductions, and

exemptions for the years 1990 and 1991. Finally, petitioners

alleged respondent owes them the total of $8,345 for both years.

Respondent filed a motion to dismiss herein for failure to

state a claim. The Court ordered a new petition, with specific

errors of respondent alleged therein, and specific allegations of

facts, and the grounds, which petitioners rely upon. Petitioners

replied to respondent's motion to dismiss, asserting generally

the same protester claims as in the petition, and adding a few

others, including allegations that the Federal Government was

engaged in "plundering" petitioners.

After a hearing by the Court, all petitioners' lengthy

protester rhetoric was ordered stricken by the Court, except for

paragraph 2 of petitioners' response to respondent's motion which
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was ordered to be filed as an amended petition on February 10,

1994. 

Said paragraph 2 contained allegations by petitioners as to

their gross receipts, gross income, adjustments to income,

deductions, exemptions, and net taxable income for 1990 and 1991,

respectively.

Respondent filed an answer denying all material parts of the

amended petition, and the case was at issue on April 11, 1994.

Thereafter, on September 6, 1994, petitioners filed a motion

for summary judgment in which petitioners repeated again the tax

protester rhetoric that had been struck from the first petition,

e.g., (a) that respondent's statutory notice was defective as a

matter of law; (b) that respondent had no jurisdiction to

determine deficiencies against petitioners; and (c) whether

respondent could convert "a voluntary noncompulsory tax system as

enacted by Congress" into a "nonvoluntary compulsory tax system".

The Court answered the contentions of petitioners in an

order dated September 14, 1994, in which, after summarizing

petitioners' contentions, the Court denied the motion for summary

judgment by petitioners, and quoted Lonsdale v. Commissioner, 661

F.2d 71, 72 (5th Cir. 1981), affg. T.C. Memo. 1981-122, which

said:

Appellant's contentions are stale ones, long

settled against them. As such, they are frivolous. 

Bending over backwards, in indulgence of appellant's

pro se status, we today forbear the sanctions of * * *

[damages for frivolous appeals]. We publish this
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opinion as notice to future litigants that the

continued advancing of these long-defunct arguments

invites such sanctions, however.

Undeterred, on September 30, 1994, petitioners moved for

reconsideration of the Court's order dated September 14, 1994,

advancing many of the same arguments theretofore rejected, in a

document of some 22 pages. It was denied.

On June 24, 1994, prior to petitioners' motion for summary

judgment, the order in connection therewith, petitioners' motion

for reconsideration thereof, and prior to trial herein (on

November 29, 1994), the United States Court of Appeals for the

Fifth Circuit affirmed this Court in petitioners' tax case

involving the year 1989, reported at Sochia v. Commissioner, 23

F.3d 941. In the Tax Court in that earlier case, petitioners

argued, as here, that their Fifth Amendment returns were valid,

that the U.S. tax system was voluntary, not mandatory, that the

determination of deficiencies against them violated their due

process rights as citizens of Texas, and that respondent had no

jurisdiction over them. The Tax Court had dismissed petitioners'

claim therein as failing to state a cause of action.

The Court of Appeals for the Fifth Circuit agreed with the

Tax Court, and characterized petitioners' arguments as stale

protester rhetoric long since discredited and now frivolous. The

Court of Appeals affirmed the Tax Court's determination of

deficiencies and additions to tax against petitioners, and,

consolidating petitioners' appeals from the District Court, also
5

 

1 Respondent made the concessions herein after having

examined petitioners' books and records, which had been made

available to her by petitioners only after the statutory notice

herein was issued.

affirmed the approval by that court of a penalty imposed by

respondent for filing a frivolous return. 

Finally, the Court of Appeals imposed double costs and

damages against petitioners for bringing such frivolous appeals.

All this was known to petitioners well in advance of trial

and briefing in the instant case. As though it had never

happened, petitioners went right ahead in the matter before us,

repeating the same stale and discredited protester arguments and

consuming valuable time of the Court, as well as respondent's

counsel, in reading and responding to them. 

In the stipulation of facts executed by the parties and

filed at trial herein, and on brief, respondent made certain

concessions as to the amount of deductible expenses incurred by

petitioners, and as to the correct amount of gross income of

petitioners for the years 1990 and 1991, and such concessions

will be given effect under Rule 155 in arriving at the decision

which is to be entered herein.1

As for the rest of it, we see no need to catalog

petitioners' contentions and painstakingly address them. We have

dealt with most of them before. Moreover, as the Court of

Appeals for the Fifth Circuit has remarked: "We perceive no need

to refute these arguments with somber reasoning and copious
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citation of precedent; to do so might suggest that these

arguments have some colorable merit." Crain v. Commissioner, 737

F.2d 1417 (5th Cir. 1984). 

Petitioners have not shown that they incurred additional

expenses beyond those allowed by respondent or that their gross

income as determined in the notice of deficiency should be

reduced by any amount greater than that which respondent has

agreed to and conceded. It was petitioners' burden to make such

a showing. Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933).

Thus, respondent's determinations of the deficiency, as modified

to give effect to respondent's concessions herein, must stand.

The additions to tax for failure to file returns under

section 6651(a) for each of the years must likewise be approved. 

A Form 1040 which contains only "object Fifth Amendment" entries

is not a Federal income tax return. Beard v. Commissioner, 82

T.C. 766, 777 (1984), affd. 793 F.2d 139 (6th Cir. 1986). This

is true even where information forms are attached to the form. 

Reiff v. Commissioner, 77 T.C. 1169, 1177-1179 (1981).

Finally, petitioners have not alleged, let alone shown, that

they had any credible fear of prosecution that could remotely

justify claiming the Fifth Amendment with respect to the

reporting of any given item on their returns. Reiff v.

Commissioner, supra.

We also approve respondent's imposition of the addition to

tax for failure to pay estimated income tax under section 6654(a)
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for each of the years in issue. The addition to tax is mandatory

in the absence of specified exemptions, Grosshandler v.

Commissioner, 75 T.C. 1 (1980), and petitioners have not shown

that any of the exemptions apply to them.

We turn now to respondent's request that a penalty against

petitioners under section 6673(a) be awarded. As relevant

herein, section 6673(a)(1) authorizes the Tax Court to require a

taxpayer to pay to the United States not in excess of $25,000

whenever it appears that proceedings have been instituted or

maintained by the taxpayer primarily for delay or that the

taxpayer's position in such proceeding is frivolous or

groundless.

The record in this case convinces us that petitioners were

not interested in disputing the merits of either the deficiencies

in income tax or the additions to tax determined by respondent in

the notice of deficiency. Rather, the record demonstrates that

petitioners regarded this case as a vehicle to protest the tax

laws of this country and espouse their own misguided views.

A petition to the Tax Court is frivolous "if it is contrary

to established law and unsupported by a reasoned, colorable

argument for change in the law". Coleman v. Commissioner, 791

F.2d 68, 71 (7th Cir. 1986). Petitioners' position as set forth

in the petition, motion for summary judgment, and other filings

consists solely of stale and time-worn tax protester rhetoric. 
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Based on well-established law, petitioners' position is frivolous

and groundless.

We also are convinced that petitioners instituted and

maintained this proceeding primarily, if not exclusively, for

purposes of delay. Having to deal with this matter wasted the

Court's time, as well as respondent's. Moreover, taxpayers with

genuine controversies were delayed. We find all of this

particularly egregious when we consider that petitioners were

aware of the outcome of their 1989 case in the Fifth Circuit, on

much the same grounds, prior to the time the trial herein

occurred, as we have recounted above. Cf. Sandvall v.

Commissioner, 898 F.2d 455, 459 (5th Cir. 1990), affg. T.C. Memo.

1989-189 and T.C. Memo. 1989-56.

In view of the foregoing, we will exercise our discretion

under section 6673(a)(1) and require petitioners to pay a penalty

to the United States in the amount of $2,000 for each of the

years here in issue. Coleman v. Commissioner, supra at 71-72;

Crain v. Commissioner, supra at 1417-1418; Coulter v.

Commissioner, 82 T.C. 580, 584-586 (1984); Abrams v.

Commissioner, 82 T.C. 403, 408-411 (1984).

In order to reflect the foregoing,

Decision will be entered

under Rule 155.