1Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue. All

Rule references are to the Tax Court Rules of Practice and

Procedure, unless otherwise indicated.

T.C. Memo. 1996-85

UNITED STATES TAX COURT

HENRY F. WESSELMAN, Petitioner, v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10505-95. Filed February 28, 1996.

Henry F. Wesselman, pro se.

John W. Duncan, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge John F. Dean pursuant to section 7443A(b)(4) and Rules

180, 181, and 183.1 The Court agrees with and adopts the opinion

of the Special Trial Judge, which is set forth below.
- 2 -

OPINION OF THE SPECIAL TRIAL JUDGE

DEAN, Special Trial Judge: This matter is before the Court

on respondent's Motion for Summary Judgment. Respondent contends

that she is entitled to summary judgment on the ground there is

no genuine issue as to any material fact and a decision may be

entered as a matter of law.

Background

On March 31, 1995, respondent issued a statutory notice of

deficiency to petitioner determining Federal income tax

deficiencies and additions to tax as follows:

 Additions to Tax 

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

1991 $6,725 $1,681 $79

1992 8,662 2,166 378

1993 22,523 5,631 942

The deficiencies in petitioner's income taxes are based on

respondent's determination that petitioner failed to report a

number of items of income for the years 1991, 1992, and 1993,

including gross receipts from a trade or business, interest,

dividends, and proceeds from the sale or redemption of

securities.

The addition to tax under section 6651(a)(1) is based on

respondent's determination that petitioner's failure to file

timely an income tax return for each of the years at issue was

not due to reasonable cause. The addition to tax under section

6654(a) is based on respondent's determination that petitioner
- 3 -

 

2In an attempt to have his cake as well as eat it,

petitioner states, in a document denominated "Affidavit in

Support of Petition", that Illinois is "united by and under the

Constitution of the United States."

failed to pay the requisite amount of estimated income taxes for

1991, 1992, and 1993.

On June 16, 1995, petitioner filed a petition in which he

disputes all of the deficiencies and additions to tax. In his

petition he also alleges that although he is a "state citizen of

Illinois [not State of Illinois]", he is not a United States

citizen2, or "resident alien", and is not a nonresident alien

that is engaged in a U.S. trade or business.

Respondent filed an answer to the petition on July 10, 1995,

followed on August 14, 1995, by the subject motion for summary

judgment. 

By Order dated August 17, 1995, this matter was set for

hearing in St. Louis, Missouri, on October 2, 1995. The case was

called for hearing on that date and both petitioner and counsel

for respondent appeared. At the hearing, respondent waived oral

argument in support of her motion. Petitioner's oral argument

consisted of the usual, patently frivolous, tax protester

arguments. 

Although admitting to "having a job" and to receiving

"compensation" for his work, petitioner nevertheless takes the

position that for the years 1991 through 1993, he was not subject

to Federal income tax because: (a) "26 C.F.R." is not published
- 4 -

 

3Rule 121 is derived from Fed. R. Civ. P. 56. Therefore,

authorities interpreting the latter will be considered by the

Court in applying our Rule. Espinoza v. Commissioner, 78 T.C.

412, 415-416 (1982).

in the Federal Register; (b) the statutory notice of deficiency

contains information from respondent's "Business Master File" and

petitioner is "not in any business of any kind"; (c) he reserves

all his "remedies as for [sic] the Uniform Commercial Code";

(d) he is not a United States citizen (but admits being born in

Illinois); (e) he does not know what tax return to file because

there is no OMB (Office of Management and Budget) number and

expiration date on Form 1040; and (f) the income tax only applies

to the District of Columbia, Guam, and Puerto Rico.

Many of petitioner's arguments were in the form of a

question, such as "What IRS director -- district director am I

dealing with? Is it Guam? Is it Puerto Rico?" Although

admonished more than once by the Court that the pertinent

question for the hearing was whether there was a factual dispute

about his receipt of unreported income in the years at issue,

petitioner presented only nonsensical "legal" tax protester

arguments. 

Discussion

Rule 1213 provides that either party may move for summary

adjudication upon all or any of the legal issues in dispute if

the moving party can show that there is no genuine issue as to
- 5 -

 

4See also Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th

Cir. 1986), a case cited by the Court in Celotex Corp. v.

Catrett, 477 U.S. 317, 319 (1986), wherein it is stated: "If the

moving party can show that there is no evidence whatever to

any material fact, and that a decision may be rendered as a

matter of law. 

The moving party has the burden of "showing" the absence of

a genuine issue as to any material fact. See Espinoza v.

Commissioner, 78 T.C. 412, 416 (1982), and cases cited therein. 

In Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the

Supreme Court described the "showing" that must be made by the

moving party:

a party seeking summary judgment always bears

the initial responsibility of informing the 

* * * court of the basis for its motion, and

identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the

affidavits, if any,' which it believes

demonstrate the absence of a genuine issue of

material fact. * * * 

In Celotex, the Supreme Court held that the moving party in

a summary judgment action need not in all cases introduce

evidence negating an essential element of the opponent's claim in

order to prevail on the motion. If the moving party can make a

"showing" from the record of "a complete failure of proof

concerning an essential element of the nonmoving party's case"

and on which the nonmoving party will bear the burden of proof at

trial, there can be "'no genuine issue as to any material fact,'"

with respect to that claim. Id. at 322-323.4
- 6 -

establish one or more essential elements of a claim on which the

opposing party has the burden of proof, trial would be a bootless

exercise, fated for an inevitable result". 

 

5We direct petitioner's attention to respondent's memorandum

in support of her motion for summary judgment for cases holding

petitioner's tired claims to be absurd. 

 

6Petitioner refused to say whether he filed Illinois income

tax returns for the years at issue.

 Here petitioner has the burden of proof to show that

respondent's determinations are erroneous. Rule 142(a); Welch v.

Helvering, 290 U.S 111 (1933); Beard v. Commissioner, 82 T.C.

766, 773 (1984), affd. 793 F.2d 139 (6th Cir. 1986). Petitioner

has not met that burden in this matter as his only objections to

respondent's determined deficiencies in and additions to tax are

based on frivolous tax protestor arguments. We need not address

these arguments,5 see Crain v. Commissioner, 737 F.2d 1417 (5th

Cir. 1984).

One of the purposes of summary judgment, as provided by 

Rule 121, is to isolate and dispose of factually unsupported

claims or defenses. Celotex v. Catrett, supra at 324; see also

Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). To that end,

respondent's motion is appropriate in this case. Petitioner

admits that he received "compensation" and that he did not file

Federal income tax returns reporting income.6 We find that there

is a complete failure of proof by petitioner; he can point to no

evidence in the record to show that respondent's determinations

are incorrect. Based on the record, respondent is entitled to
- 7 -

summary judgment as a matter of law, and we so hold. See, e.g.,

Beard v. Commissioner, supra. 

We turn now to an award of a penalty against petitioner

under section 6673(a). The Court may on its own initiative

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

where the circumstances justify its imposition. Horn v.

Commissioner, 90 T.C. 908, 945 (1988).

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 tax 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 to 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), affg. an unreported order of this

Court. Based on well-established law, petitioner's position is

frivolous and groundless.
- 8 -

We are also convinced that petitioner instituted and

maintained this proceeding primarily, if not exclusively, for

purposes of delay. Dealing with this matter wasted the Court's

time, respondent's time, and 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 $5,000. See Fox v.

Commissioner, 969 F.2d 951, 953 (10th Cir. 1992), affg. T.C. Memo

1991-240; Crain v. Commissioner, supra at 1417-1418; Coulter v.

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

An order and decision will be 

entered granting respondent's 

Motion for Summary Judgment and 

requiring petitioner to pay a

penalty pursuant to section 

6673(a).