T.C. Memo. 1998-350

UNITED STATES TAX COURT

MARK T. ALLEN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No 3543-97. Filed October 5, 1998. 

Alexandra E. Nicholaides, for respondent.

MEMORANDUM OPINION

FOLEY, Judge: On November 22, 1996, respondent issued a

notice of deficiency to Mark T. Allen for tax years 1992, 1993,

and 1994. Respondent determined the following deficiencies in,

and additions to, Mr. Allen's Federal income taxes:
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 Additions to Tax 

Year Deficiency Sec. 6651(f) Sec. 6654

1992 $20,915 $15,686 $139

1993 22,318 16,739 935

1994 23,649 17,737 1,218

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. 

When Mr. Allen filed his petition, on February 24, 1997, he

resided in Kent City, Michigan. In his petition, Mr. Allen

contested all of respondent's determinations. Mr. Allen has the

burden of proving that respondent's determinations of income tax

deficiencies and additions to tax under section 6654 are

erroneous. He refused, however, to stipulate any facts, appear

at trial, or submit a brief.

Prior to 1992, Mr. Allen filed timely Federal income tax

returns. Mr. Allen did not, however, file returns or pay

estimated taxes relating to 1992, 1993, and 1994. During these

years, Mr. Allen operated a sole proprietorship which designed

and manufactured electric controls. After conducting an audit

and reconstructing Mr. Allen's income from bank records,

respondent determined that Mr. Allen is liable for income and

self-employment taxes relating to 1992, 1993, and 1994. Mr.

Allen, however, did not present any evidence relating to these

issues. Accordingly, we sustain respondent's determinations. 
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Respondent also determined that Mr. Allen is liable for

section 6651(f) additions to tax for fraudulently failing to file

his 1992, 1993, and 1994 Federal income tax returns. Respondent

must establish, by clear and convincing evidence, that Mr.

Allen's failure to file was an attempt to evade tax. See sec.

7454(a); Clayton v. Commissioner, 102 T.C. 632, 646, 651-653

(1994). A taxpayer's attempts to conceal income, mislead the

Internal Revenue Service, or prevent the collection of income tax

may establish the requisite fraudulent intent. See Rowlee v.

Commissioner, 80 T.C. 1111, 1123 (1983).

Mr. Allen was aware of his Federal income tax return filing

obligations, but failed to file his 1992, 1993, and 1994 returns. 

In addition, Mr. Allen attempted to conceal his income-producing

activities by encouraging his bank not to comply with

respondent's summons, sending respondent a false affidavit, and

refusing to provide respondent with relevant information. 

Moreover, Mr. Allen attempted to evade tax when he failed to file

his returns. Accordingly, he is liable for the section 6651(f)

additions to tax relating to 1992, 1993, and 1994. 

At trial, respondent made an oral motion for the Court to

penalize Mr. Allen, pursuant to section 6673(a), for engaging in

dilatory tactics and asserting frivolous arguments. We conclude

that such a penalty is inappropriate in this case and deny

respondent's request.
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To reflect the foregoing,

Decision will be entered

under Rule 155.