1 Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

T.C. Memo. 2005-60

UNITED STATES TAX COURT

RICHARD JOHN FLORANCE, JR., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 11782-03. Filed March 29, 2005.

Richard John Florance, Jr., pro se.

Adam L. Flick, for respondent.

MEMORANDUM OPINION

VASQUEZ, Judge: This case is before the Court on

respondent’s motion for summary judgment and motion to impose a

penalty under section 6673.1 
- 2 -

Background

By notice of deficiency, respondent determined a deficiency

of $3,300 and additions to tax of $825 and $176.55 pursuant to

sections 6651(a)(1) and 6654(a), respectively, in petitioner’s

1997 Federal income tax.

On July 17, 2003, petitioner invoked the jurisdiction of

this Court by filing an improper petition. 

On July 21, 2003, the Court ordered petitioner to file a

proper amended petition on or before September 19, 2003.

On August 13, 2003, petitioner filed a status report

acknowledging receipt of the Court’s July 21, 2003, order and

stating that the case could be resolved without an amended

petition once “Regional or District Counsel” was assigned.

On September 17, 2003, petitioner filed an amended petition. 

Petitioner requested that this case be conducted under the small

tax case procedure. In the amended petition, petitioner noted

that in the notice of deficiency respondent made an adjustment

for $15,000 in wages he admitted he received in 1997 but failed

to include an additional $37,000 in wages petitioner received

during 1997.

On December 15, 2003, petitioner filed a motion for judgment

on the pleadings. Petitioner characterized the primary issue in

his case as whether he was a “taxpayer” and asserted that he had

challenged this issue. The motion for judgment on the pleadings
- 3 -

also contained other frivolous and groundless statements,

contentions, and arguments. 

On January 9, 2004, the Court denied petitioner’s motion for

judgment on the pleadings.

By notice dated February 10, 2004, the Court set this case

for trial at the Court’s Dallas, Texas, session beginning April

26, 2004. This notice specifically stated: “YOUR FAILURE TO

APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION

AGAINST YOU.” 

On March 8, 2004, petitioner filed a motion for continuance.

On March 17, 2004, the Court denied petitioner’s motion for

continuance. The Court also ordered that petitioner’s request

for admissions be returned to petitioner unfiled, and that

petitioner and respondent meet as soon as practical for purposes

of informal discovery and to complete a stipulation of facts as

required by Rule 91 (March 17 order). In the March 17 order, we

stated: “Respondent further objects that petitioner’s request

document ‘requests respondent to admit to matters that are

irrelevant, conclusions of law, frivolous arguments and not

properly discoverable.’ We do not disagree.” 

On March 18, 2004, petitioner filed a motion to remove the 

small tax case designation and another document the Court filed

as petitioner’s pretrial memorandum. The pretrial memorandum
- 4 -

contained frivolous and groundless statements, contentions, and

arguments. 

On March 19, 2004, the Court granted petitioner’s motion to

remove the small tax case designation and ordered respondent to

file an answer to the amended petition on or before April 19,

2004.

On March 25, 2004, petitioner filed a notice of

nonacquiescence to the March 17 order and a motion for

continuance.

On March 30, 2004, the Court denied petitioner’s motion for

continuance. 

On April 2, 2004, respondent filed an answer. In the

answer, respondent affirmatively alleged that (1) he received a

proposed set of stipulations from petitioner, (2) petitioner

attached a Form W-2, Wage and Tax Statement, for 1997 from

Enterprise Network Systems, Inc., listing petitioner’s name and

address and $37,019.21 in wages paid to petitioner, (3) the Form

W-2 has a typographical error in which the numerals in

petitioner’s Social Security number have been transposed, (4) on

the basis of petitioner’s admission of receipt of this income in

his amended petition and the Form W-2 respondent proposed an

increased deficiency for petitioner for 1997, and (5) the total

deficiency for 1997 is $12,006. Additionally, upon the basis of

the additional unreported income from Enterprise Network Sys.,
- 5 -

Inc., not contained in the notice of deficiency, respondent also

asserted that the total additions to tax pursuant to sections

6651(a) and 6654(a) are $3,001.50 and $642.33, respectively.

That same day, petitioner filed a motion to shift the burden

of proof to respondent pursuant to section 7491 and a motion for

interlocutory review of the March 17 order. 

On April 9, 2004, petitioner filed a notice of refusal to

stipulate.

On April 13, 2004, the Court denied petitioner’s motion for

interlocutory review. In order to give petitioner time to file a

reply to the answer, the Court also ordered this case stricken

from the Court’s Dallas, Texas, session beginning April 26, 2004,

and continued it generally. 

On April 22, 2004, petitioner filed a motion for stay, an

objection regarding the docket sheet, a second motion for

judgment on the pleadings, and a motion for interlocutory appeal. 

In the objection, petitioner objected to the capitalization

of certain letters of his name and to the address listing

petitioner as a “resident” of a State “via the identifier of

‘TX.’” Petitioner claimed he was not a resident of that State. 

In his objection regarding the docket sheet, beneath his

signature, petitioner listed his address as 1908 Vassar Drive,

Richardson, Texas 75081. This is the same address that

petitioner had listed in his imperfect petition.
- 6 -

In the motion for interlocutory review, petitioner requested

interlocutory review of all the orders of the Court and stated: 

“This notice intends also to cover prospectively any such order

as it becomes a decision of the Tax Court.” 

On April 28, 2004, the Court denied petitioner’s motion for

stay, motion for judgment on the pleadings, and motion for

interlocutory appeal. 

On May 12, 2004, the Court notified respondent that

petitioner had filed on April 2, 2004, a motion to shift the

burden of proof and that if there was an objection, a notice of

objection had to be filed on or before June 1, 2004.

On May 28, 2004, respondent filed an objection to

petitioner’s motion to shift the burden of proof, and pursuant to

Rule 37, filed a motion for entry of order that undenied

allegations in the answer to the amended petition be deemed

admitted.

On June 4, 2004, the Court denied petitioner’s motion to

shift the burden of proof. The Court also notified petitioner

that respondent had filed on May 28, 2004, a motion for an order

that the specified affirmative allegations in the answer be

deemed admitted; that if petitioner filed a reply as required by

Rule 37 on or before June 24, 2004, respondent’s motion would be

denied; and that if petitioner did not file a reply, the Court
- 7 -

would grant respondent’s motion and deem admitted for purposes of

this case the affirmative allegations in the answer.

On June 21, 2004, petitioner filed a reply. In the reply,

petitioner admitted respondent received a proposed set of

stipulations from petitioner; petitioner attached the Form W-2

for 1997 from Enterprise Network Sys., Inc., listing petitioner’s

name and address; and petitioner admitted that the Form W-2 has a

typographical error in which the numerals in petitioner’s Social

Security number have been transposed. Petitioner denied that a

deficiency exists or that any additions to tax are justified.

On June 22, 2004, the Court denied respondent’s motion for

entry of order that undenied allegations in the answer to the

amended petition be deemed admitted. 

By notice dated June 30, 2004, the Court set this case for

trial at the Court’s Dallas, Texas, session beginning December 6,

2004. This notice specifically stated: “YOUR FAILURE TO APPEAR

MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST

YOU.” Attached to this notice was the Court’s standing pretrial

order.

On November 12, 2004, the Court lodged respondent’s

objection to petitioner’s request for admissions. Respondent
- 8 -

2 We note that petitioner’s requests included: “‘Taxpayer’

means fiduciary”, “‘United States’ is a federal corporation”, and

“‘UNITED STATES OF AMERICA’ is another federal corporation”.

attached a copy of petitioner’s request for admissions to his

objection.2

On November 16, 2004, pursuant to Rule 90, the Court ordered

petitioner to file his request for admissions. Petitioner failed

to do so.

On November 22, 2004, petitioner filed a status report. The

status report alleged criminal conduct by the Court and contained

disrespectful and vulgar statements directed to the Court. 

Petitioner failed to appear at the call or recall of his

case.

On December 13, 2004, respondent filed a motion for summary

judgment and a motion to impose a penalty under section 6673. 

Petitioner filed no response to either motion.

Discussion

A. Motion for 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 a decision may be rendered as a matter of law. Rule 121(b);

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994).
- 9 -

3 We note that, in the alternative, we could have dismissed

this portion of the case pursuant to Rule 123(b). Cf. White v.

Commissioner, T.C. Memo. 1997-459.

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.

1. Deficiency Determined in the Notice of Deficiency

Petitioner did not appear at trial. We previously ruled

that the burden of proof did not shift to respondent pursuant to

section 7491(a). Petitioner bears the burden of proof for the

deficiency determined in the notice of deficiency. See Rule

142(a). Petitioner failed to produce any evidence to rebut the

deficiency determined by respondent in the notice of deficiency. 

Accordingly, we sustain respondent’s deficiency determination

contained in the notice of deficiency.3

2. Increased Deficiency

Respondent bears the burden of proof on the increased

deficiency. See id. The increased deficiency derives from

$37,019.21 in wages paid to petitioner by Enterprise Network

Sys., Inc. This amount is income to petitioner. See sec. 61.

Petitioner, as early as the amended petition, admitted

receiving this income and provided respondent a document to

support this admission. Petitioner further admitted that this

amount was not included in the notice of deficiency.
- 10 -

Accordingly, we conclude that petitioner is liable for the

increased deficiency.

3. Additions to Tax

a. Burden of Production: Section 7491(c)

Section 7491(c) provides that the Commissioner will bear the

burden of production with respect to the liability of any

individual for additions to tax and penalties. “The

Commissioner’s burden of production under section 7491(c) is to

produce evidence that it is appropriate to impose the relevant

penalty, addition to tax, or additional amount”. Swain v.

Commissioner, 118 T.C. 358, 363 (2002); see also Higbee v.

Commissioner, 116 T.C. 438, 446 (2001). If a taxpayer files a

petition alleging some error in the determination of an addition

to tax or penalty, the taxpayer’s challenge will succeed unless

the Commissioner produces evidence that the addition to tax or

penalty is appropriate. Swain v. Commissioner, supra at 363-365. 

The Commissioner, however, does not have the obligation to

introduce evidence regarding reasonable cause or substantial

authority. Higbee v. Commissioner, supra at 446-447.

b. Section 6651(a)(1)

Respondent determined that petitioner is liable for an

addition to tax pursuant to section 6651(a)(1) for 1997. Section

6651(a)(1) imposes an addition to tax for failure to file a

return on the date prescribed (determined with regard to any
- 11 -

extension of time for filing), unless such failure is due to

reasonable cause and not due to willful neglect. 

Respondent submitted a certified transcript of petitioner’s

account for 1997. The certified transcript states that

petitioner did not file a return for 1997. Accordingly,

respondent has met his burden of production for the section

6651(a)(1) addition to tax for 1997. 

Petitioner has not established that his failure to timely

file for 1997 was due to reasonable cause. See Higbee v.

Commissioner, supra at 446-447. Accordingly, petitioner is

liable for the section 6651(a)(1) addition to tax for 1997. 

c. Section 6654(a)

Section 6654 imposes an addition to tax for failure to pay

estimated income tax. Respondent submitted petitioner’s Form W-2

for 1997 from Enterprise Network Sys., Inc., and a certified

transcript of petitioner’s account for 1997. The forms indicate

that petitioner did not have any Federal income tax withheld and

did not make any estimated income tax payments for 1997. We

conclude that respondent has satisfied his burden of production

regarding this issue. Thus, petitioner must come forward with

evidence sufficient to persuade the Court that respondent’s

determination is incorrect. See Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933); see Higbee v. Commissioner, supra at

447. 
- 12 -

We find that petitioner had no income tax withheld and paid

no estimated income taxes for 1997 and that no exception pursuant

to section 6654(e) applies. We hold that petitioner is liable

for the addition to tax pursuant to section 6654(a).

4. Section 6673

Section 6673(a)(1) authorizes this Court to require a

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous or groundless positions in

the proceedings or instituted the proceedings primarily for

delay. A position maintained by the taxpayer is “frivolous”

where 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); see also Hansen v.

Commissioner, 820 F.2d 1464, 1470 (9th Cir. 1987) (section 6673

penalty upheld because taxpayer should have known claim was

frivolous).

Petitioner filed numerous frivolous documents and motions

with the Court. Petitioner has advanced shopworn arguments

characteristic of tax-protester rhetoric that has been

universally rejected by this and other courts. Wilcox v.

Commissioner, 848 F.2d 1007 (9th Cir. 1988), affg. T.C. Memo.

1987-225; Carter v. Commissioner, 784 F.2d 1006, 1009 (9th Cir.

1986). We will not painstakingly address petitioner’s assertions

“with somber reasoning and copious citation of precedent; to do
- 13 -

so might suggest that these arguments have some colorable merit.” 

Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984). 

We conclude petitioner’s position was frivolous and

groundless and that petitioner instituted and maintained these

proceedings primarily for delay. Accordingly, pursuant to

section 6673(a) we hold petitioner is liable for a $10,000

penalty.

To reflect the foregoing,

An appropriate order and

decision will be entered.