T.C. Memo. 1996-143

UNITED STATES TAX COURT

WAYNE CURTIS MCKEE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3730-94. Filed March 21, 1996.

Wayne Curtis McKee, pro se.

Christal W. Hillstead, for respondent. 

MEMORANDUM OPINION

DINAN, Special Trial Judge: This case was heard pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and
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1 Unless otherwise indicated, all section references are

to the Internal Revenue Code in effect for the taxable years in

issue. All Rule references are to the Tax Court Rules of

Practice and Procedure.

182.1 Respondent determined deficiencies in petitioner's Federal

income tax and additions to tax as follows: 

 ______Additions to Tax_______

Year Deficiency Sec. 6651(a) Sec. 6654

1989 $2,119 $530 $144

1990 2,456 614 160

1991 2,584 100 --- 

The issues for decision are: (1) Whether petitioner is

liable for Federal income taxes on wages received during the

years in issue; (2) whether section 6501 bars the assessment and

collection of taxes when a taxpayer fails to file returns; (3)

whether petitioner is liable for additions to tax pursuant to

section 6651(a); and (4) whether petitioner is liable for

additions to tax pursuant to section 6654. 

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

The stipulations of fact and attached exhibits are incorporated

herein by this reference. Petitioner resided in Sumner, 

Washington, on the date the petition was filed in this case.

Petitioner failed to file Federal income tax returns for the

taxable years 1989, 1990, and 1991, despite having received wages

in the amounts of $19,214.85, $21,674.30 and $22,786.62 for those

years, respectively. Respondent determined deficiencies in
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petitioner's Federal income taxes and additions to tax based on

Forms W-2 filed by petitioner's employer. 

In his petition, petitioner raised traditional "tax

protester" type arguments. He maintains that reporting and

paying income taxes is strictly voluntary; that the 5th Amendment

to the Constitution of the United States prevents respondent from

requiring him to provide the information called for on an income

tax return; and it is the Government's responsibility to

calculate his taxes and send him a bill within 60 days of the

year's end.

The first issue for decision is whether petitioner is liable

for Federal income taxes on his wages. Respondent's

determinations as to petitioner's tax liability is presumed to be

correct, and petitioner bears the burden of proving otherwise. 

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

Section 61 defines gross income as all income from whatever

source derived. Included within the definition of gross income

is "compensation for services". Sec. 61(a)(1). During the

taxable years 1989, 1990, and 1991, petitioner received taxable

wages. Sec. 61.

All of petitioner's arguments have been rejected repeatedly

by the courts. There is no doubt that petitioner was required to

file income tax returns for the years in issue and that he was

required to pay taxes on his wages. See secs. 1, 61, 6011, 6012,

7701(a). Petitioner is a classic tax protester raising
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traditional protester arguments. See Crain v. Commissioner, 737

F.2d 1417 (5th Cir. 1984). In Crain v. Commissioner, supra at

1417, when a tax protester raised similar arguments, the Court of

Appeals for the Fifth Circuit opined: "We perceive no need to

refute theses arguments with somber reasoning and copious

citation of precedent; to do so might suggest that these

arguments have some colorable merit." We agree. 

This Court, as well as the Ninth Circuit, have held

petitioner's arguments to be nothing more than tax protester

rhetoric and legalistic gibberish. See Fuller v. United States,

786 F.2d 1437 (9th Cir. 1986); Hudson v. United States, 766 F.2d

1288 (9th Cir. 1985); McCoy v. Commissioner, 76 T.C. 1027 (1981),

affd. 696 F.2d 1234 (9th Cir. 1983); United States v. Romero,

640 F.2d 1014 (9th Cir. 1981); Woods v. Commissioner, 91 T.C. 88

(1988); Abrams v. Commissioner, 82 T.C. 403 (1984); Rowlee v.

Commissioner, 80 T.C. 111 (1983); Snyder v. Commissioner, T.C.

Memo. 1995-405; Devon v. Commissioner, T.C. Memo. 1995-206;

McGanty v. Commissioner, T.C. Memo. 1995-178; Diehl v.

Commissioner, T.C. Memo. 1990-48.

The next issue for decision is whether the statute of

limitations bars assessment where petitioner has failed to file

returns. Petitioner contends that the tax liability for the

taxable years in issue are uncollectible because respondent

failed to make an assessment within 60 days of the end of the

taxable year. Respondent contends otherwise.
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Pursuant to section 6501((3), in the case of the failure to

file a return, the tax may be assessed or a proceeding in court

for the collection of such tax may be begun without assessment at

any time. Accordingly, respondent is sustained on this issue 

The third issue for decision is whether petitioner is liable

for section 6651(a)(1) additions to tax. Section 6651(a)(1)

imposes an addition to tax for failure to timely file a return,

unless the taxpayer establishes: (1) The failure did not result

from "willful neglect"; and (2) the failure was "due to

reasonable cause". "Willful neglect" has been interpreted to

mean a conscious, intentional failure, or reckless indifference. 

United States v. Boyle, 469 U.S. 241, 245-246 (1985). 

"Reasonable cause" requires the taxpayer to demonstrate that he

exercised ordinary business care and prudence and was nonetheless

unable to file a return within the prescribed time. United

States v. Boyle, supra at 246; sec. 301.6651-1(c)(1), Proced. and

Admin. Regs. The addition to tax equals 5 percent of the tax

required to be shown on the return for the first month, with an

additional 5 percent for each additional month or fraction of a

month during which the failure to file continues, not to exceed a

maximum of 25 percent. Sec. 6651(a)(1).

Petitioner made no attempt to comply with the law. 

Accordingly, respondent's determinations with respect to the

additions to tax under section 6651(a) are sustained. 
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The final issue for decision is whether petitioner is liable

for the additions to tax imposed under section 6654. Respondent

determined that petitioner was liable for additions to taxes

under section 6654(a) for failure to pay estimated income tax for

the years in issue. Where payments of tax, either through

withholding or by making estimated quarterly tax payments during

the course of the year, do not equal the percentage of total

liability required under the statute, imposition of the addition

to tax under section 6654 is automatic, unless petitioner shows

that one of the statutory exceptions apply. Niedringhaus v.

Commissioner, 99 T.C. 202, 222 (1992); Grosshandler v.

Commissioner, 75 T.C. 1, 20-21 (1980). Petitioner bears the

burden to show qualification for such exception. Habersham-Bey

v. Commissioner, 78 T.C. 304, 319-320 (1982). Petitioner has not

sustained this burden. Petitioner's employer did not withhold

any Federal income taxes from petitioner's 1989, 1990 or 1991

wages because petitioner filed "exempt" status. Petitioner did

not make any estimated tax payments for the years in issue. 

Accordingly, we hold that petitioner is liable for the additions

to tax under section 6654 for the years in issue. 

To reflect the foregoing,

Decision will be entered

for respondent.