T.C. Summary Opinion 2008-104

UNITED STATES TAX COURT

WILLIAM R. HARPER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10312-07S. Filed August 19, 2008.

William R. Harper, pro se.

Monica J. Miller, for respondent.

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

section 7463 of the Internal Revenue Code in effect when the

petition was filed. Pursuant to section 7463(b), the decision to

be entered is not reviewable by any other court, and this opinion

shall not be treated as precedent for any other case. Unless

otherwise indicated, subsequent section references are to the

Internal Revenue Code as amended, and all Rule references are to

the Tax Court Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioner’s 2004

Federal income tax of $29,568, an addition to tax under section

6651(a)(1) of $3,594.83, an addition to tax under section

6651(a)(2) of $1,517.82, and an addition to tax under section

6654(a) of $419.94. 

Petitioner concedes the income items determined by

respondent to be correct in their amount and source. The parties

agree that petitioner did not timely file his Federal income tax

return for 2004. Petitioner offered no argument or evidence to

show that he: (a) Is not subject to the overall limitation on

itemized deductions, (b) is not subject to the alternative

minimum tax, and (c) failed to file timely his Federal income tax

return for reasonable cause and not willful neglect. Thus,

petitioner has conceded these issues. See, e.g., Bradley v.

Commissioner, 100 T.C. 367, 370 (1993); Corp. & Subs. v.

Commissioner, 96 T.C. 226, 344 (1991).

Respondent concedes that petitioner is not liable for the

addition to tax under section 6651(a)(2). 

The issues remaining for decision are whether petitioner is: 

(1) Able to have his deficiency “reassigned” to his former wife,

and (2) liable for the addition to tax under section 6654(a).

Background

Some of the facts have been stipulated and are so found.

The stipulation of facts and the exhibits received into evidence
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are incorporated herein by reference. At the time the petition

was filed, petitioner resided in Georgia.

Petitioner and his former wife separated in September 2004.

The Superior Court of Houston County, Georgia (superior court),

entered a divorce judgment and decree (decree) in Harper v.

Harper on November 14, 2005. The decree provides that “(4) All

monies due the Internal Revenue Service for back taxes; Plaintiff

will do whatever is required by the IRS to hold Defendant

[petitioner] harmless as to this debt”.

Petitioner alleges that he attempted to get his former

wife’s cooperation in filing a joint individual Federal tax

return for 2004. Petitioner testified that “She just refused to

do it, and I finally filed a married, filing separate return.”

Discussion

Generally, the Commissioner’s determinations in a notice of

deficiency are presumed correct, and the taxpayer has the burden

of proving that those determinations are erroneous. See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). In some

cases the burden of proof with respect to relevant factual issues

may shift to the Commissioner under section 7491(a). Since the

only issue raised with respect to the deficiency determination is

a legal matter, the burden of proof does not shift to respondent.
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1To the extent that petitioner may be characterized as

asking for relief from liability, sec. 6015 is inapplicable. 

Petitioner did not file a joint return and the “erroneous items”

creating the understatement are not attributable to the “other

individual”. See sec. 6015(a)(1), (b)(1) and (c)(1).

Reassignment of Petitioner’s Deficiency

Citing the “hold harmless” language in the decree,

petitioner argues that his tax deficiency should be “reassigned”

to his ex-wife. There is, however, no provision in the Code

permitting the “reassignment” of a tax deficiency from one

taxpayer to another.1 And the decree from the superior court

does not bind this Court or prevent the Court from determining a

deficiency due from petitioner. See Pesch v. Commissioner, 78

T.C. 100, 129 (1982) (and cases cited thereat). 

It is oft repeated that this Court is a court of limited

jurisdiction. Naftel v. Commissioner, 85 T.C. 527, 529 (1985);

Medeiros v. Commissioner, 77 T.C. 1255, 1259 (1981); Wilt v.

Commissioner, 60 T.C. 977, 978 (1973). The Court may therefore

exercise jurisdiction only to the extent expressly provided by

Congress. See sec. 7442; Breman v. Commissioner, 66 T.C. 61, 66

(1976) (“This Court has pointed out on numerous occasions that

its jurisdiction is strictly limited by statute and that it may

not enlarge upon that statutory jurisdiction.”); see also Rule

13.

The Court is reviewing this case under section 6213, which

confers jurisdiction to redetermine deficiencies in income taxes. 
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See Estate of DiRezza v. Commissioner, 78 T.C. 19, 25 (1982). By

asking the Court to reassign his tax deficiency on the basis of

language in the decree, petitioner is implicitly asking the Tax

Court to enforce a provision of the superior court’s decree

against his former wife. The Tax Court has no jurisdiction in

State court matters. Not only does this Court lack jurisdiction

over petitioner’s divorce matters; the general rule is that a

court has the power to compel obedience to its own judgments and

that only that court may punish an offender who disobeys its

orders. See United States v. Barnett, 330 F.2d 369, 385 (5th

Cir. 1963); Jacob v. Koslow, 644 S.E.2d 857, 858 (Ga. 2007);

Corbett v. Corbett, 511 S.E.2d 633, 634 (Ga. Ct. App. 1999). 

The Court cannot reassign petitioner’s deficiency or force

another taxpayer to become liable for his Federal income tax

deficiency.

Section 6654(a) Addition to Tax 

The Commissioner bears the burden of production with respect

to any addition to tax. Sec. 7491(c). In order to meet this

burden, the Commissioner must produce evidence sufficient to

establish that it is appropriate to impose the addition to tax. 

Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).

Section 6654 imposes an addition to tax for failure to make

timely and sufficient payments for estimated taxes. In order for

respondent to satisfy his burden of production under section
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7491(c), he must produce evidence necessary to enable the Court

to conclude that petitioner had an obligation to make an

estimated tax payment. See Wheeler v. Commissioner, 127 T.C.

200, 211 (2006), affd. 521 F.2d 1289 (10th Cir. 2008). 

Specifically, respondent must produce evidence showing that

petitioner had a “required annual payment” as defined by section

6654(d)(1)(B) for the year at issue. See id.

The section 6654 addition to tax is calculated with

reference to four required installment payments of the taxpayer’s

estimated tax liability. Sec. 6654(c)(1). Each required

installment of estimated tax is equal to 25 percent of the

“required annual payment”. Sec. 6654(d)(1)(A).

Under section 6654(d)(1)(B), “required annual payment” means

the lesser of:

(i) 90 percent of the tax shown on the

return for the taxable year (or, if no return

is filed, 90 percent of the tax for such

year), or 

(ii) 100 percent of the tax shown on the

return of the individual for the preceding

taxable year. 

Clause (ii) shall not apply if the preceding taxable

year was not a taxable year of 12 months or if the

individual did not file a return for such preceding

taxable year.

Petitioner failed to file a return for 2004. That evidence

is sufficient for the Court to make the analysis required by
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section 6654(d)(1)(B)(i). Respondent, however, failed to

introduce evidence showing whether petitioner filed a return for

the preceding taxable year, i.e., 2003, and if he did, the amount

of tax shown on that return. Without that evidence, the Court

cannot identify the amount equal to 100 percent of the tax shown

on petitioner’s 2003 return.

The Court cannot conclude that petitioner had a required

annual payment for 2004 because respondent failed to produce

sufficient evidence, as required by section 7491(c), to allow the

Court to complete the comparison required by section

6654(d)(1)(B). See Wheeler v. Commissioner, supra. Accordingly,

petitioner is not liable for the addition to tax under section

6654(a) for 2004.

To reflect the foregoing,

Decision will be

entered for respondent as to 

 the deficiency and the section

6651(a) addition to tax and

for petitioner as to the

additions to tax under

sections 6651(a)(2) and

6654(a).