1 Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the taxable years in 

issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

T.C. Memo. 1996-185

UNITED STATES TAX COURT

MARIO KELVIN ARREDONDO, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 25906-95. Filed April 17, 1996.

Mario Kelvin Arredondo, pro se.

Richard S. Goldstein and Michael L. Boman, for respondent.

MEMORANDUM OPINION

ARMEN, Special Trial Judge: This case was heard pursuant to

the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1
This case is before the Court on respondent's Motion To

Dismiss For Failure To State A Claim Upon Which Relief Can Be

Granted, as supplemented, filed pursuant to Rule 40.

Petitioner resided in Carthage, Missouri, at the time that

the petition was filed with the Court. 

Respondent's Notice of Deficiency

Respondent issued a notice of deficiency to petitioner dated

September 13, 1995. In said notice, respondent determined the

following deficiencies in petitioner's Federal income taxes and

additions to tax: 

 Additions to Tax 

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

 1991 $3,949 $976 $224

 1992 4,018 995 174

 1993 4,293 1,073 182

The deficiencies in income taxes, which include deficiencies in

self-employment taxes, are based on respondent's determination that

petitioner failed to report income as reflected in the following

schedules:

 1991 

Income Payor Amount

Wages2 Pizza Hut $1,803

Nonemployee

 compensation Carthage Press 2,387

Other self-

 employment income 13,379

2Respondent has given petitioner credit for amounts withheld from his taxes

insofar as his ultimate tax liability is concerned. However, the determination
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of a statutory deficiency does not take such amounts into account. See sec.

6211(b)(1).

 1992 

Income Payor Amount

Wages3 Pizza Hut $1,189

Nonemployee

 compensation Carthage Press 2,387

 " " Kansas City Star 4,665

Other self-

 employment income 9,469

3See supra note 2.

 1993 

Income Payor Amount

Interest Boatmen's Bank $16

 " United Missouri Bank 7

 Nonemployee

 compensation Carthage Press 994

 " " Kansas City Star 11,746

 " " APC Mo. Holdings, Inc. 951

" " Kirksville Publishing 951

Other self-

 employment income 3,564

The additions to tax under section 6651(a)(1) are based on

respondent's determination that petitioner's failure to timely

file income tax returns for the taxable years in issue was not

due to reasonable cause. Finally, the additions to tax under

section 6654(a) are based on respondent's determination that

petitioner failed to pay the required amount of estimated taxes

for the taxable years in issue.

Petitioner's Petition

 Petitioner filed his petition on December 12, 1995. The

crux of petitioner's position is that nothing in subtitle A of
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2 Respondent subsequently supplemented her motion to dismiss

to account for a computational error in the determination of the

deficiency for 1993. Respondent now contends that the deficiency

for that year should be $4,290, rather than $4,293 as determined

in the notice of deficiency. 

the Internal Revenue Code makes him liable for any income taxes

because, inter alia, the income tax is an excise tax that can be

assessed only against those who are either licensed or

incorporated. Thus, the petition includes the following

allegations:

1) No where in subtitle A can a code be found making me

liable for an "Income Tax". * * *

* * * * * * *

6) The mission statement of the Internal Revenue 

Service stating that the Income Tax relied upon 

"voluntary compliance" and a statement from the Head of

the Alcohol and Tobacco tax division of the IRS which

in essence showed that the Income Tax is 100% voluntary

as opposed to the Alcohol and Tax which is 100%

enforced. [Errors in the original.]

7) Since I'm not enjoying any corporate privileges nor

am I engaged in any privileged occupation that 

Income or Earnings from the exercise of common right 

could not be taxed as an excise or otherwise. [Errors

in the original.]

Respondent's Rule 40 Motion and Subsequent Developments

As indicated, respondent filed a Motion To Dismiss For

Failure To State A Claim Upon Which Relief Can Be Granted.2 On

January 29, 1996, shortly after respondent filed her motion to

dismiss, the Court issued and served an order calendaring

respondent's motion for hearing and also directing petitioner to
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file a proper amended petition in accordance with the

requirements of Rule 34. In particular, the Court directed

petitioner to file a proper amended petition setting forth with

specificity each error allegedly made by respondent in the

determination of the deficiency and separate statements of every

fact upon which the assignments of error are based. Petitioner

failed to respond to the Court's order.

 Respondent's motion to dismiss was called for hearing

pursuant to notice in Washington, D.C., on March 6, 1996. 

Counsel for respondent appeared at the hearing and presented

argument on the pending motion. Petitioner did not appear at the

hearing. However, he did file a Rule 50(c) statement with the

Court shortly before the hearing.

In his Rule 50(c) statement, petitioner again reiterated his

claim that individuals are not liable for any income tax. Thus,

petitioner's Rule 50(c) statement includes the following

statements:

3. After extensive research, I cannot find any code or

section of a code that states that individuals are

required to file or pay income taxes or is LIABLE for

the tax. * * * Since no code or section of a code

states that individuals are LIABLE for income taxes,

require to file a return or require to pay such a tax. 

The only conclusion that I can see is that I am not

LIABLE for such tax or require to file a return or

require to pay for such tax as set forth by code

section 6011 and the privacy act. [Errors in the

original.] 

Discussion
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Rule 40 provides that a party may file a motion to dismiss

for failure to state a claim upon which relief can be granted. 

We may grant such a motion when it appears beyond doubt that the

party's adversary can prove no set of facts in support of a claim

which would entitle him or her to relief. Conley v. Gibson, 355

U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th

Cir. 1982).

Rule 34(b)(4) requires that a petition filed in this Court

contain clear and concise assignments of each and every error

that the taxpayer alleges to have been committed by the

Commissioner in the determination of the deficiency and any

addition to tax in dispute. Rule 34(b)(5) further requires that

the petition contain clear and concise lettered statements of the

facts on which the taxpayer bases the assignments of error. See

Jarvis v. Commissioner, 78 T.C. 646, 658 (1982). The failure of

a petition to conform with the requirements set forth in Rule 34

may be grounds for dismissal. Rules 34(a)(1), 123(b).

In general, the determinations made by the Commissioner in a

notice of deficiency are presumed to be correct, and the taxpayer

bears the burden of proving that those determinations are

erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933). Moreover, any issue not raised in the pleadings is

deemed to be conceded. Rule 34(b)(4); Jarvis v. Commissioner,

supra at 658 n.19; Gordon v. Commissioner, 73 T.C. 736, 739

(1980).
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The petition filed in this case does not satisfy the

requirements of Rule 34(b)(4) and (5). There is neither

assignment of error nor allegation of fact in support of any

justiciable claim. Rather, there is nothing but tax protester

rhetoric and legalistic gibberish, as demonstrated by the

passages from the petition previously quoted. See Abrams v.

Commissioner, 82 T.C. 403 (1984); Rowlee v. Commissioner, 80 T.C.

1111 (1983); McCoy v. Commissioner, 76 T.C. 1027 (1981), affd.

696 F.2d 1234 (9th Cir. 1983).

The Court's order dated January 29, 1996, provided

petitioner with an opportunity to assign error and allege

specific facts concerning his liability for the taxable years in

issue. Unfortunately, petitioner failed to respond to the

Court's order. We see no need to catalog petitioner's arguments

and painstakingly address them. As the Court of Appeals for the

Fifth Circuit has remarked: "We perceive no need to refute these

arguments with somber reasoning and copious citation of

precedent; to do so might suggest that these arguments have some

colorable merit." Crain v. Commissioner, 737 F.2d 1417, 1417

(5th Cir. 1984). Suffice it to say that individuals are subject

to the income tax under subtitle A of the Internal Revenue Code. 

E.g., Zyglis v. Commissioner, T.C. Memo. 1993-341, affd. without

published opinion 29 F.3d 620 (2d Cir. 1994). See sec. 1(a)-(d). 

Moreover, petitioner's claim that the income tax is an excise tax

that can only be assessed against those who are either licensed
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or incorporated is frivolous. Martin v. Commissioner, 756 F.2d

38, 40 (6th Cir. 1985), affg. T.C. Memo. 1983-473. 

Because the petition fails to state a claim upon which

relief can be granted, we will grant respondent's motion to

dismiss, as supplemented. See Scherping v. Commissioner, 747

F.2d 478 (8th Cir. 1984).

We turn now, on our own motion, to the award of a penalty

against petitioner under section 6673(a). 

As relevant herein, section 6673(a)(1) authorizes the Tax

Court to require a taxpayer to pay to the United States a penalty

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 petitioner was not

interested in disputing the merits of either the deficiencies in

income taxes or the additions to tax determined by respondent in

the notice of deficiency. Rather, the record demonstrates that

petitioner regards this case as a vehicle to protest the tax laws

of this country and espouse his 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). Petitioner's position, as set forth

in the petition and the Rule 50 statement, consists solely of tax
- 9 -

 

3 See supra note 2.

protester rhetoric and legalistic gibberish. Based on well

established law, petitioner's position is frivolous and

groundless. 

We are also convinced that petitioner 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. 

In view of the foregoing, we will exercise our discretion

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

to the United States in the amount of $1,000. 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, supra at 408-411.

In order to reflect the foregoing,

An order of dismissal and

decision will be entered.3