T.C. Memo. 2008-233

UNITED STATES TAX COURT

CLIFTON K. WILLIS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

SHERI A. WILLIS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 7140-06, 7222-06. Filed October 21, 2008. 

Clifton K. Willis and Sheri A. Willis, pro sese.

Christopher S. Kippes, for respondent.

MEMORANDUM OPINION

GERBER, Judge: These consolidated cases were submitted 

fully stipulated pursuant to Rule 122. Unless otherwise

indicated, all section references are to the Internal Revenue

Code, and all Rule references are to the Tax Court Rules of
- 2 -

1 Because we decide that there are no prohibitions on

respondent, it is unnecessary to decide whether we have

jurisdiction over the assessment of interest, as contended by

respondent. 

Practice and Procedure. Petitioners failed to file returns for

the taxable years 1999 through 2003. After the issuance of

notices of deficiency and the filing of petitions, they filed

income tax returns with respondent. The parties have agreed to

the amounts shown on those returns and the resulting income tax

deficiencies and additions to tax under section 6651(a)(1), along

with related computational matters. Petitioners, however,

contend that respondent is prohibited from assessing the

additions to tax or any interest on the grounds that the

assessment would contravene section 3512 of the Paperwork

Reduction Act of 1995 (PRA), 44 U.S.C. sec. 3512 (2000). In

particular, petitioners rest their contention upon their position

that respondent has failed to comply with 44 U.S.C. sections 

3506(c)(1)(B) (2000) and 3512. 

Respondent disagrees, contending that he is in compliance

with the PRA and that the additions to tax and interest may be

assessed. Respondent also contends that this Court is without

jurisdiction to consider whether respondent may assess interest,1

irrespective of whether there was compliance with the PRA.
- 3 -

Congress enacted the PRA to limit, as much as practical,

Federal agencies’ information requests that burden the public. 

See Dole v. United Steelworkers of Am., 494 U.S. 26, 32-33

(1990). Congress designated the Office of Management and Budget

(OMB) as an overseer of other agencies with respect to the act. 

 To the extent pertinent to these cases, the PRA was enacted

with the express purposes of: (1) Minimizing the paperwork

burden; (2) ensuring public benefit from information collected,

maintained, used, shared and disseminated by or for the Federal

Government; (3) coordinating and making uniform Federal

information resources management policies and practices and (4)

improving the responsibility and accountability of the OMB and

all other Federal agencies to Congress and to the public for

implementing the information collection review process,

information resources management, and related policies and

guidelines. See 44 U.S.C. sec. 3501 (2000).

In order to accomplish those goals, Congress provided

detailed requirements for governmental organizations to follow. 

Petitioners contend that respondent failed to comply with the PRA

in two ways. 

First, petitioners argue that the PRA control number on the

Form 1040, U.S. Individual Income Tax Return, was not valid. The

“public protection” provision of 44 U.S.C. section 3512 provides 

public protection where there has been failure to comply with the
- 4 -

PRA, as follows:

§ 3512. Public protection 

(a) Notwithstanding any other provision of law, no

person shall be subject to any penalty for failing to

comply with a collection of information that is subject

to this subchapter [44 U.S.C. secs. 3501, et seq.] if–-

 (1) the collection of information does not display a

valid control number assigned by the Director in

accordance with this subchapter [44 U.S.C. secs. 3501-

3521]; or

 (2) the agency fails to inform the person who is to

respond to the collection of information that such

person is not required to respond to the collection of

information unless it displays a valid control number.

(b) The protection provided by this section may be

raised in the form of a complete defense, bar, or

otherwise at any time during the agency administrative

process or judicial action applicable thereto.

Each Form 1040 contains a control number, and the

accompanying instructions inform taxpayers that they are not

required to respond to the collection of information unless the

form displays a valid control number. Petitioners contend that

respondent’s Form 1040 for the years in question did not contain

a valid control number. Petitioners acknowledge that the Form

1040 does contain a control number (OMB No. 1545-0074), but they

argue that the control number expires at the end of the taxable

year displayed on the form. 

Petitioners’ reasoning is somewhat convoluted in that they

argue, for example, that the Form 1040 has a control number for

1999, but that the control number expires on December 31, 1999,

before the form is used in 2000 (typically on or before April 15,
- 5 -

2000) to report income for 1999. Under petitioners’

interpretation, respondent would face the conundrum of never

being able to have a valid control number, because the form must

be prepared, printed, and distributed prior to filing time, which

begins January 1st each year. Accordingly, we find petitioners’

initial argument to be sophistry and without merit. The Forms

1040 contain a control number that has been provided and

displayed in accord with the PRA.

In a recent opinion, the Court of Appeals for the Tenth

Circuit decided that the Form 1040 is an information collection

request and that it displays a valid control number, even though

it is the same number each year, because the agency periodically

updates the control number requirements. Lewis v. Commissioner, 

523 F.3d 1272 (10th Cir. 2008), affg. T.C. Memo. 2007-44. The

taxpayer in Lewis made the same and substantially similar

arguments as petitioners have made in this case. The Court of

Appeals in Lewis v. Commissioner, supra, also held that the PRA

does not require an expiration date to be printed on the Form

1040 and that it need not include the PRA disclosures. 

In further support of their argument, petitioners reference

44 U.S.C. section 3506(c)(1)(B), which requires that, in addition

to displaying a control number, each governmental request for

information indicates that it is in accordance with section 44

U.S.C. section 3507 (2000). Petitioners point out that the “3507 
- 6 -

statement” does not appear on the Form 1040 or in the

instructions for that form. 

To the extent pertinent to this case, section 3506(c)(1)(B)

of the PRA provides:

 (c) With respect to the collection of information

and the control of paperwork, each agency shall–-

 (1) establish a process within the office headed

by the Chief Information Officer designated under

subsection (a), that is sufficiently independent of

program responsibility to evaluate fairly whether

proposed collections of information should be approved

under this subchapter [44 U.S.C. secs. 3501-3521], to–-

 * * * * * *

 (B) ensure that each information collection–-

 (i) is inventoried, displays a control 

 number and, if appropriate, an expiration 

 date;

 (ii) indicates the collection is in 

 accordance with the clearance requirements of 

 section 3507 [44 U.S.C. sec. 3507]; and

 (iii) informs the person receiving the 

 collection of information of–-

 (I) the reasons the information is 

 being collected;

 (II) the way such information is

 to be used;

 (III) an estimate, to the extent 

 practicable, of the burden of the collection; 

 

(IV) whether responses to the 

collection of information are voluntary, 

required to obtain a benefit, or mandatory; and

 (V) the fact that an agency may not 

conduct or sponsor, and a person is not

 required to respond to, a collection of

 information unless it displays a valid

 control number; * * *
- 7 -

Petitioners contend that respondent failed to include the

“3507 statement”, which makes respondent’s control number invalid

and/or precludes respondent from assessing any penalty in accord

with 44 U.S.C. sec. 3512. We are unable to make the same

connection between section 3512 of the PRA and the above-quoted

agency requirement in 44 U.S.C. section 3506(c)(1)(B). The

protection clause of section 3512 of the PRA expressly provides

that a taxpayer will not be subject to a penalty under two

circumstances: (1) Where a valid control number is not displayed

or (2) the agency fails to inform that taxpayers are not required

to respond to the collection of information unless a valid

control number is displayed. There is no question that

respondent met those requirements in the Forms 1040 and

accompanying instructions. 

Failure to make the “3507 statement” is not one of the

things that would prohibit assessment of a penalty under 

44 U.S.C. section 3512. In addition, it is not clear that

respondent failed to make the “3507 statement”. Section

3506(c)(1)(B)(ii) of 44 U.S.C. provides that each agency must

establish a process to ensure that each collection of information

indicates that it is in accordance with the clearance

requirements of 44 U.S.C. section 3507. By providing the control

number and other information about the collection of information,

respondent has made a statement that he is in compliance with 44
- 8 -

U.S.C. section 3507 (2000). We do not think it necessary for

respondent to expressly state the section number 3507 in order to

comply with the statute. 

Petitioners also referenced other requirements of 44 U.S.C.

section 3506 that they believe were not complied with. If, for

purposes of discussion, we assume arguendo that respondent failed

to comply with some requirement of the PRA (other than the two

described above), that failure would not trigger the public

protection provision of 44 U.S.C. section 3506(c)(1)(B) or

prohibit respondent from assessing a penalty. Section 3506 of 44

U.S.C. does not cross-reference 44 U.S.C. section 3512 and there

is no indication in the statute or legislative history reflecting

otherwise. Failure to comply with 44 U.S.C. section 3506 may

result in some regulatory action by OMB, but it does not result

in the prohibition of the assessment of penalties. 

Petitioners contend that a substantial body of case law

supports their position that respondent may not assess the

additions to tax and interest, but none of the cases advanced,

either directly or by analogy, supports their position. First,

they point out that several Federal courts have held that the

Form 1040 is subject to the PRA. There is no doubt Form 1040 is

subject to the PRA, and, indeed, respondent has obtained a

control number and provided required information in the

instructions for the form. 
- 9 -

2 Petitioners spend a good deal of their brief arguing why

they disagree with the Court statements made by a different 

Judge of this Court in an earlier hearing in their case. Because

that Judge did not issue an opinion, we feel no compulsion to

address petitioners’ arguments in this opinion. The presentation

of this case under Rule 122 is a de novo matter which we address

in this opinion. 

Petitioners then discuss, without reaching any conclusion,

that various Courts of Appeals have differing views about whether

the requirement to file a return is statutory, regulatory, or

some combination thereof.2 That distinction takes on some

importance because the collection of information by a government

agency pursuant to statute is not subject to the requirements of

the PRA. It is only the collection pursuant to the agency’s

regulations that is subject to the PRA.

In a 1993 opinion, this Court held against taxpayers with

substantially similar circumstances to petitioners here, using

the following rationale:

In general, the PRA requires Federal agencies

requesting information from the public to obtain

approval from the U.S. Office of Management and Budget

(OMB) for all “information collection requests” and

that an OMB control number be displayed on the

information request. 44 U.S.C. sec. 3507(a)(3), (f)

(1988). If information requests fail to display the

required OMB control numbers, “no person shall be

subject to any penalty for failing to maintain or

provide information to any agency”. 44 U.S.C. sec.

3512. Relying on this provision, petitioner argues

that, because the regulations and instructions to which

he would have referred had he filed tax returns did not

contain OMB numbers, he cannot be penalized for failure

to file. 

 A number of courts have addressed petitioner’s

argument and have held that the PRA does not apply to
- 10 -

either Federal income tax regulations or to the

instructions accompanying Federal tax forms because

such documents are not information collection requests;

rather, they are designed to help taxpayers complete

tax forms and more easily comply with information 

collection requests. See Salberg v. United States, 969

F.2d 379 (7th Cir. 1992); United States v. Holden, 963

F.2d 1114 (8th Cir. 1992); United States v. Dawes, 951

F.2d 1189 (10th Cir. 1991); United States v. Crocker,

753 F. Supp. 1209 (D. Del. 1991); see also Dole v.

United Steelworkers, 494 U.S. 26 (1990). Several

Courts of Appeals have also rejected petitioner’s

argument on the grounds that the requirement to file

tax returns is mandated by statute, not by regulation,

and statutes are not subject to the PRA. See Salberg

v. United States, supra; United States v. Neff, 954

F.2d 698 (11th Cir. 1992); United States v. Hicks, 947

F.2d 1356 (9th Cir. 1991); United States v. Kerwin, 945

F.2d 92 (5th Cir. 1991); United States v. Wunder, 919

F.2d 34 (6th Cir. 1990). This Court has found both

analyses persuasive and, in any event, both lead us to

the same result. Our research has not located, and the

parties have not referred us to, any cases in which

this Court has heard and accepted petitioner’s

arguments concerning the PRA. Because the cases in

which this Court has heard and rejected such arguments

are too numerous to cite, we cite the following as

examples: Aldrich v. Commissioner, T.C. Memo. 1993-

290; McCart v. Commissioner, T.C. Memo. 1993-96;

McDonald v. Commissioner, T.C. Memo. 1992-586; Pekrul

v. Commissioner, T.C. Memo. 1992-455, affd. without

published opinion 993 F.2d 884 (9th Cir. 1993); DiCarlo

v. Commissioner, T.C. Memo. 1992-280; Ferguson v.

Commissioner, T.C. Memo. 1992-95, affd. without

published opinion 995 F.2d 223 (5th Cir. 1993), cert.

denied [510] U.S. [918] (1993); Nulsen v. Commissioner,

T.C. Memo. 1991-495. 

[Freas v. Commissioner, T.C. Memo. 1993-552.] 

There is no need to further analyze the many nuances

expressed in the numerous cases on this topic. Suffice it to

note that none of them support petitioners’ view that the control 

number expires and/or that failure to comply with a requirement
- 11 -

3 Because we have decided that respondent is not prohibited

from making an assessment in these cases, there is no need to

consider whether 44 U.S.C. section 3512 would also prohibit the

assessment of interest, as petitioners contend, or respondent’s

argument that we lack jurisdiction to consider matters regarding

post assessment interest. 

of 44 U.S.C. 3506 triggers the public protection provision 

(44 U.S.C. section 3512) and thereby prohibits respondent’s

assessment of penalties.3

Petitioners’ final argument focuses upon section 7491(c) and

whether respondent has met his burden of production with respect

to the addition to tax and/or whether the burden of proof has

been shifted to respondent. Section 7491(c) places the burden of

production on respondent with respect to penalties and additions

to tax. To the extent we understand petitioners’ argument, they

contend that respondent met his burden of production because

petitioners failed to file returns, but that they have provided

persuasive evidence that the Form 1040 is not in compliance with

the PRA so that the burden of proof now rests with respondent. 

The context of these cases is one where the parties agree on

the facts and have submitted the cases fully stipulated solely to

decide the legal controversy over whether the PRA applies to

prohibit respondent from assessing the additions to tax and/or

interest. Under such circumstances, the burden of proof is of

little or no consequence, because we decide, based on agreed 
- 12 -

facts, a legal question. Accordingly, we find it unnecessary to

address petitioners’ contentions with respect to section 7491(c). 

To reflect the foregoing,

Decisions will be entered in

accord with the parties’

stipulation.