T.C. Memo. 1997-463

UNITED STATES TAX COURT

WALTER E. PETERSON, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3398-95. Filed October 9, 1997.

Walter E. Peterson, pro se.

Amy Campbell, for respondent. 

MEMORANDUM OPINION

COLVIN, Judge: Respondent determined that petitioner has a

deficiency in Federal income tax for 1992 of $23,768, is liable

for self-employment tax of $8,676, and that he is liable for

additions to tax of $3,942 for failure to file a return under

section 6651(a)(1) and $1,038 for failure to pay estimated tax

under section 6654(a).
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As discussed below, we reject petitioner frivolous tax

protester arguments and sustain respondent's determination.

Section references are to the Internal Revenue Code in

effect in the year in issue. Rule references are to the Tax

Court Rules of Practice and Procedure.

Background

A. Petitioner

Petitioner was married when he filed his petition in this

case and lived in Roswell, Georgia. Petitioner's wife filed a

Federal income tax return, Form 1040, for 1992 in which she

itemized her deductions.

B. Petitioner's Income

Petitioner received $66,978 in nonemployee compensation in

1992 from the following sources: (1) $2,106 from Massachusetts

General Life Insurance Co.; (2) $3,822 from Pioneer Life

Insurance Co. of Illinois; (3) $1,804 from Western Fidelity

Marketing, Inc.; (4) $48,602 from National Group Life Insurance

Co.; and (5) $10,644 from Pyramid Life Insurance Co. In 1992, he

received $22 in interest from Provident Bank and $9 in interest

from Bank South and he forfeited $15 in interest from Provident

Bank. In 1992, Twentieth Century Investors, Inc., paid

petitioner $30 for capital stock for a $30 capital gain. 

Twentieth Century Investors, Inc., also paid petitioner $3 in

1992, $2 of which was a dividend and the remaining $1 of which

was a capital gain.
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C. Petitioner's 1992 Return

Petitioner did not file a Federal income tax return, Form

1040, for 1992. Instead, he filed a U.S. Nonresident Alien

Income Tax Return, Form 1040NR. On that return, he reported no

income or other amounts and wrote "na" or "not applicable" on the

lines for home address and income, adjustments, tax, credits, and

other taxes. Petitioner did not pay any Federal income tax for

1992.

D. Trial

Petitioner did not offer any evidence contrary to

respondent's determination. The Court advised petitioner that he

had the burden of proof and noted that he had presented no

evidence to meet that burden.

Respondent moved for summary judgment at trial on October

23, 1997, because petitioner had admitted receiving the income as

determined in the notice of deficiency, offered no contrary

evidence, and made only tax protester arguments. When respondent

made that motion, it was clear that petitioner had refused to

submit further evidence and was relying only on tax protester

arguments.

Discussion

A. Petitioner's Tax Protester Arguments

Petitioner submitted a pretrial memorandum in which he

listed as issues for trial: (1) Whether section 61 applies to

him; (2) whether he must file a Form 1040; (3) whether he is
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required to pay tax; and (4) whether the substitute for return

under section 6020(b) applies only to alcohol, tobacco, and

firearm activities. Petitioner listed no witnesses in his

pretrial memorandum. He relied on his proposed stipulation of

facts as the statement of facts in his pretrial memorandum. 

Petitioner also submitted a white notebook which contained

materials stating his position in this case. The Court filed

petitioner's pretrial memorandum, white notebook, and statement

to make a record of his contentions.

Petitioner contends that the income tax is invalid and

denies that it applies to him. Petitioner said that he

researched tax law and decided to file a return for a nonresident alien because he believed that he was entitled to

receive a refund of tax that he had previously paid. In his

response to respondent's proposed stipulation of facts, he said

that he should not have filed a Form 1040NR return because he did

not know of any obligation he had to file any return.

Petitioner also contends that: (1) He was not liable for

tax because he was not involved in any excisable activity; (2)

respondent's substitute for return is invalid because section

6020(b) only applies to alcohol, tobacco, and firearms; (3) Form

1040 is not the proper form for an individual taxpayer to file;

(4) payment of income tax is voluntary, and he did not volunteer

to pay it; (5) he did not receive due process; (6) he did not

receive notice that he was required to keep records; (7)
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1 See Aldrich v. Commissioner, T.C. Memo. 1993-290 and cases

cited therein, for a discussion of the effect of the Paperwork

Reduction Act of 1980, 44 U.S.C. secs. 3501-3520 (1988), on the

deficiency process.

2 Respondent determined and concedes that petitioner may

deduct $15 for forfeited interest. Petitioner did not know that

he was entitled to deduct that amount.

respondent has the burden of proof as the proponent of rules; and

(8) the notice of deficiency violates sections 3504(h), 3507(a),

and 3512 of the Paperwork Reduction Act of 1980, 44 U.S.C. secs.

3501-3520 (1988).1

Petitioner's contentions are a rehash of frivolous tax

protester arguments. See Wilcox v. Commissioner, 848 F.2d 1007

(9th Cir. 1988), affg. T.C. Memo. 1987-225; United States v.

Romero, 640 F.2d 1014 (9th Cir. 1981). His arguments have been

uniformly rejected by this and other courts. Abrams v.

Commissioner, 82 T.C. 403, 406-407 (1984); Rowlee v.

Commissioner, 80 T.C. 1111 (1983); McCoy v. Commissioner, 76 T.C.

1027 (1981), affd. 696 F.2d 1234 (9th Cir. 1983). We see no need

to address petitioner's contentions here. See, e.g., Crain v.

Commissioner, 737 F.2d 1417 (5th Cir. 1984); Solomon v.

Commissioner, T.C. Memo. 1993-509, affd. without published

opinion 42 F.3d 1391 (7th Cir. 1994).

B. Deficiency

Petitioner stipulated that he received the amounts of income

as determined by respondent.2
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Petitioner's filing status was married, filing separately in

1992. Sec. 1(d). Petitioner's wife filed a separate return in

which she itemized deductions. Petitioner is not entitled to a

standard deduction because his spouse itemized deductions on her

return. Sec. 63(c)(6)(A). We sustain respondent's determination

that petitioner has a $23,768 income tax deficiency for 1992.

C. Self-Employment Tax

Respondent determined that petitioner is liable for selfemployment tax of $8,676, section 1401, and that he may deduct

self-employment tax of $4,338, section 164(f), for 1992. We

sustain respondent's determination on this point.

D. Addition to Tax for Failure To File a Return

Respondent determined that petitioner is liable for the

addition to tax for failure to file a return. Sec. 6651(a). 

Petitioner contends that he is not liable for this addition to

tax because he is an individual and not a person, and he was not

involved in excisable activity.

Section 6651(a)(1) imposes an addition to tax of up to 25

percent for failure to timely file Federal income tax returns

unless the taxpayer shows that such failure was due to reasonable

cause and not willful neglect. Petitioner did not file a Form

1040 for 1992. A Form 1040 which discloses no information

relating to a taxpayer's income is not a return within the

meaning of section 6011. Hatfield v. Commissioner, 68 T.C. 895

(1977); Cupp v. Commissioner, 65 T.C. 68, 79-80 (1975), affd.
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without published opinion 559 F.2d 1207 (3d Cir. 1977); see also

Commissioner v. Lane-Wells Co., 321 U.S. 219 (1944). Petitioner

filed an incomplete Form 1040NR on which he reported no income or

other amounts. Petitioner offered no evidence to show, contrary

to respondent's determination, that his Form 1040NR is a valid

return for purposes of section 6651(a)(1). Petitioner's Form

1040NR is not a valid return for purposes of section 6651. 

Petitioner made no attempt to show that his failure to file

a timely return was due to reasonable cause and not willful

neglect except for his frivolous contentions about the income tax

system. We sustain respondent's determination that petitioner is

liable for the addition to tax for failure to file a return under

section 6651(a) for 1992.

E. Failure To Pay Estimated Tax

Respondent also determined that petitioner is liable for the

addition to tax for failure to pay estimated tax under section

6654.

The addition to tax for failure to pay estimated tax under

section 6654 applies unless the taxpayer shows that he or she

meets one of the computational exceptions provided in section

6654(e), none of which applies here. Petitioner offered no

evidence to show why he did not pay estimated tax. We sustain

respondent's determination that petitioner is liable for the

addition to tax for failure to pay estimated tax under section

6654 for 1992.
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3 Because petitioner bears the burden of proof on all

disputed issues, Rule 142(a), the result in this case would be no

different if we decided it based on respondent's motion for

summary judgment (which we will deny as moot).

For the foregoing reasons,

Decision will be entered for

respondent.

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