T.C. Memo. 1996-277

UNITED STATES TAX COURT

ED M. FISHER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16104-94. Filed June 13, 1996.

Ed M. Fisher, pro se.

William R. Davis, Jr., for respondent.

MEMORANDUM OPINION

FAY, Judge: Respondent determined deficiencies in and

additions to petitioner's Federal income tax as follows:

 Additions to Tax 

Sec. Sec.

Year Deficiency 6651(a)(1) 6654

1989 $47,209 $8,552 $2,820

1990 70,955 17,739 4,672

1991 38,740 9,685 2,228

1992 42,101 10,525 1,836
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All section references are to the Internal Revenue Code in

effect for the years in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure, unless otherwise

indicated.

The issues for decision after concessions by the parties

are:

1. Whether petitioner is liable for tax on income arising

from nonemployee compensation for the 1989, 1990, 1991, and 1992

tax years. We hold that he is.

2. Whether petitioner is liable for self-employment tax on

his nonemployee compensation during the 1989, 1990, 1991, and

1992 tax years. We hold that he is.

3. Whether petitioner is liable for additions to tax under

section 6651(a)(1) for failure to file for the 1989, 1990, 1991,

and 1992 tax years. We hold that he is.

4. Whether petitioner is liable for additions to tax under

section 6654 for failure to pay estimated tax for the 1989, 1990,

1991, and 1992 tax years. We hold that he is.

5. Whether petitioner is liable for a penalty under section

6673. We hold that he is.

Some of the facts have been stipulated. The stipulation of

facts and the attached exhibits are incorporated herein by this

reference. At the time he filed his petition, petitioner resided

in Branson, Missouri. Petitioner was married at all times during
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1Petitioner claims that portions of all the amounts received

as nonemployee compensation were reimbursement of travel

expenses. However, petitioner, presented no evidence to support

such a claim.

the years in issue. Petitioner did not file Federal income tax

returns for any of the years in issue.

On September 6, 1994, petitioner filed a petition with this

Court. Respondent filed her answer on October 24, 1994. On

December 30, 1994, petitioner filed Petitioner's Motion to Amend

Petition. On January 6, 1995, petitioner filed Petitioner's

Amended Petition.

The amended petition concedes the receipt of the dividend

and interest income attributed to petitioner in the notice of

deficiency. Petitioner indicates that he received, in 1989,

$4,099 in dividend income; in 1990, $57,685 in dividend income

and $46 in interest income; in 1991, $65 in interest income; and

in 1992, $15 in interest income.

The parties agree that petitioner received the following

amounts of nonemployee compensation for the years indicated.1

Petitioner received $137,600 in nonemployee compensation from

AT&T Technologies in 1989. Petitioner received $165,263 in

nonemployee compensation from AT&T Technologies in 1990. Petitioner received $1,500 in nonemployee compensation from Integral

Technologies in 1990. Petitioner received $97,996 in nonemployee

compensation from Southern California Gas in 1991. Petitioner

received $7,760 in nonemployee compensation from Landbase Corp.
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2This amount of $65,639 reflects a concession by respondent,

who originally asserted that petitioner received $123,538 in

nonemployee compensation for the 1992 tax year.

in 1991. Petitioner received $6,868 in nonemployee compensation

from Geographic General in 1991. Petitioner received $886 in

nonemployee compensation from the University of Wisconsin in

1991. Petitioner received $65,6392 in nonemployee compensation

from Xerox Corp. in 1992.

The parties agree that petitioner incurred deductible travel

expenses as follows which were not taken into account in the

notice of deficiency. In December 1991, petitioner incurred

deductible travel expenses of $1,177. Further, during 1992, in

connection with his relationship with Xerox Corp., petitioner

incurred $7,513 in deductible travel expenses.

On October 30, 1995, this case was called for trial in

Denver, Colorado. At trial, petitioner failed to offer any

evidence to support his case, documentary or testimonial;

instead, he attempted to pursue tax protester arguments that have

been long rejected by this Court.

 On brief, petitioner argues that the tax respondent is

attempting to impose on his nonemployee compensation, earned as a

computer systems analyst, is an excise tax for which he is not

responsible. Petitioner claims that the Internal Revenue

Service, by collecting this excise tax and treating him as a

"taxpayer", exceeds its statutory authority. Petitioner's
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arguments, based on these theories, have no merit. Rowlee v.

Commissioner, 80 T.C. 1111, 1119-1122 (1983). Petitioner's

argument that he does not hold the status of "taxpayer" is

frivolous. United States v. Studley, 783 F.2d 934, 937 (9th Cir.

1986).

Gross income, under section 61, means all income from

whatever source derived and includes income realized in any form,

whether in money, property, or services. Under section 1.61-1,

Income Tax Regs., gross income means all income from whatever

source derived, unless excluded by law. Since petitioner was a

citizen and resident of the United States and earned his income

in the United States, his income comes within the general definition of gross income under section 61. There is no exclusion 

from taxation for such income. Moreover, under section 7701(a)(1) 

petitioner was a "person" and was required, under section 6012,

to file Federal income tax returns and pay the income tax due

thereon. The authority of Congress to impose and collect Federal

income taxes from individuals has long been upheld as constitutional. James v. United States, 366 U.S. 213 (1961); O'Malley v.

Woodrough, 307 U.S. 277 (1939); Lynch v. Hornby, 247 U.S. 339

(1918).

Petitioner contends that he was a citizen of the Republic of

Colorado during the years in issue and not a citizen of the

United States. This argument is no more than a stale tax

protester contention that has long been dismissed summarily by
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this Court and all other courts that have heard such contentions. 

Rowlee v. Commissioner, supra. Petitioner is a taxpayer and is

subject to the income tax laws of the United States. United

States v. Sloan, 939 F.2d 499, 501 (7th Cir. 1991); Lovell v.

United States, 755 F.2d 517, 519 (7th Cir. 1984). The Court

rejects this and other tax protester types of arguments raised by

petitioner as being frivolous and without merit.

Petitioner has the burden of proof with respect to the

underlying deficiencies and each of the additions to tax. Rule

142(a); Shomaker v. Commissioner, 38 T.C. 192, 202 (1962). Petitioner has not presented any evidence rebutting his liability for

the deficiencies and additions to tax determined by respondent. 

We therefore sustain all of respondent's determinations.

At the trial, respondent made a motion under section 6673(a)

asking that we order petitioner to pay the United States a

penalty in an appropriate amount. Under section 6673, this Court

is permitted to impose a penalty in an amount up to $25,000 where

the proceedings have been instituted or maintained by the

taxpayer primarily for delay, where the taxpayer's position in

the proceeding is frivolous or groundless, or where the taxpayer

unreasonably failed to pursue available administrative remedies. 

Grimes v. Commissioner, 82 T.C. 235, 238 (1984).

The record plainly demonstrates that petitioner well knew

that his income was taxable. His arguments have been rejected in

many decisions by this Court in the recent past. We conclude
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that petitioner is maintaining his action in this Court primarily

for delay, and that his position in this proceeding is frivolous

and groundless. Accordingly, a penalty is awarded to the United

States in the amount of $5,000. To reflect concessions,

An appropriate order will

be issued, and decision will

be entered under Rule 155.