T.C. Memo. 1998-199

UNITED STATES TAX COURT

GERALD J. AND GAYLE R. MARTINEZ, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 19887-95. Filed June 1, 1998.

Gerald J. Martinez, pro se.

Louis John Zeller, Jr. and Emile L. Hebert III, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: Respondent determined the following deficiencies in, and additions to, the Federal income tax (tax) of

petitioner Gerald J. Martinez (Mr. Martinez) for the years

indicated:
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1 All section references are to the Internal Revenue Code in

effect for the years at issue. All Rule references are to the

Tax Court Rules of Practice and Procedure.

 Additions to Tax 

Year Deficiency

Sec.

6651(a)(1)1

Sec.

6653(a)(1)

Sec.

6653(a)(1)(A)

Sec.

6653(a)(2)

Sec.

6653(a)(1)(B)

Sec.

6654

1982 $20,599 $5,150 $1,030 -- * -- $2,005

1983 26,771 6,693 1,339 -- * -- 1,638

1984 29,989 7,497 1,499 -- * -- 1,885

1985 17,418 4,354 871 -- * -- 998

1986 14,821 3,705 -- $741 -- * 717

1987 16,221 4,055 -- 811 -- * 871

* 50 percent of the interest due on the portion of the underpayment

attributable to negligence. Respondent determined that the entire

amount of the underpayment was attributable to negligence.

Respondent determined the following deficiencies in, and additions to, the tax of petitioner Gayle R. Martinez (Ms. Martinez)

for the years indicated:

 Additions to Tax 

Year Deficiency

Sec.

6651(a)(1)

Sec.

6653(a)(1)

Sec.

6653(a)(1)(A)

Sec.

6653(a)(2)

Sec.

6653(a)(1)(B)

Sec.

6654

1982 $20,599 $5,150 $1,030 -- * -- $2,005

1983 23,433 5,858 1,172 -- * -- 1,434

1984 25,718 6,429 1,286 -- * -- 1,617

1985 12,745 3,186 637 -- * -- 730

1986 9,655 2,414 -- $483 -- * 467

1987 10,834 2,708 -- 542 -- * 582

* 50 percent of the interest due on the portion of the underpayment

attributable to negligence. Respondent determined that the entire

amount of the underpayment was attributable to negligence.

We must decide whether respondent's determinations for each

of the years at issue should be sustained. We hold that they

should.

Background

Some of the facts were orally stipulated and are so found.
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2 In the absence of adequate records for 1984, respondent

determined each petitioner's miscellaneous community income for

that year by reference to bank deposits, cash payments, and

personal and other nondeductible expenditures. 

Mr. Martinez, who at all relevant times was an attorney, and

Ms. Martinez, his spouse, lived in Metairie, Louisiana, at the

time the petition was filed.

Petitioners refused to file tax returns (returns) and pay

tax for the years at issue because of the decision of the Supreme

Court of the United States in Roe v. Wade, 410 U.S. 113 (1973). 

Petitioners' refusal to file returns and pay tax for the years at

issue is grounded in their contention that their constitutional

rights will be violated because any tax that they might pay would

be used in part to fund abortions, which is contrary to the

teachings of their religion.

 Respondent issued separate notices of deficiency (notices)

to Mr. Martinez and to Ms. Martinez for 1982, 1983, and 1984 and 

separate notices to them for 1985, 1986, and 1987. In the

notices, respondent determined that, for the years at issue, each

petitioner had one or more of the following types of community

income/loss: Capital gain/loss, interest income, rental income/loss, employee compensation, nonemployee compensation,

partnership income/loss, dividend income, Schedule C net income,

and/or miscellaneous income.2 Respondent also determined that,

for the years at issue, each petitioner is entitled to itemized

deductions for certain community expenses and to a deduction for
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one personal exemption. In calculating the respective deficiencies determined in the notices, respondent applied the tax rates

applicable to married individuals filing separately. Respondent

also determined that, for 1983 through 1987, Mr. Martinez is

liable for self-employment tax. 

Discussion

Petitioners bear the burden of proving that respondent's

determinations in the notices are erroneous. Rule 142(a); Welch

v. Helvering, 290 U.S. 111, 115 (1933).

Petitioners contend that they are not liable for tax for the

years at issue because, inter alia: 

3. The exercise of petitioners' religion prevents

them from supporting or cooperating with any person or organization engaged in allowing, recommending, encouraging, promoting. performing, or

paying for abortion, or protecting or paying for

the protection of people who allow, recommend,

encourage, promote, perform, or pay for abortions.

4. The computation and payment of money to a person

or organization engaged in allowing, recommending,

encouraging, promoting. performing, or paying for

abortion, or protecting or paying for the protection of people who allow, recommend, encourage,

promote, perform, or pay for abortions if [sic] a

violation of petitioner's religion.

5. The Constitution of the United States guarantees

petitioners' right to the free exercise of religion. Article I of the Amendments to the Constitution.

6. An amendment [the 16th Amendment] to the United

States Constitution that was not properly approved

in accordance with provisions for amending the

Constitution and is therefore improperly enforced

is not superior to the guarantees provided in the

First Amendment to the Constitution, in particu-
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lar, the guarantee of the free exercise of religion.

 * * * * * * *

10. The The [sic] contents of the Internal Revenue

Service Code and the methods employed by the Internal Revenue Service to force compliance with

laws that violate the nature [sic] law and the

conscience and religious convictions of a person

violate the Constitutions [sic] and laws of the

United States, in particular the due process

clause of the Fifth Amendment and the equal protection clause of the Fourteenth Amendment; and

the RICO Statute.

We reject the reasons advanced by petitioners in support of their

position that they are not liable for tax for the years at issue. 

In Adams v. Commissioner, 110 T.C. 137, 139 (1998), this Court

concluded that

while petitioner's religious beliefs are substantially

burdened by payment of taxes * * *, the Supreme Court has

established that uniform, mandatory participation in the

Federal income tax system, irrespective of religious belief,

is a compelling governmental interest. * * * As a result,

requiring petitioner's participation in the Federal income

tax system is the only, and thus the least restrictive,

means of furthering the Government's interest. * * * [Citations omitted.]

See Hernandez v. Commissioner, 490 U.S. 680 (1989); United States

v. Lee, 455 U.S. 252 (1982).

Petitioners further assert that they are not liable for tax

for the years at issue because respondent's "cause of action was

prescribed [sic]" when respondent mailed the notices on June 28,

1995. We disagree. Section 6501(c)(3) provides that, in the

case of failure to file a return, "the tax may be assessed, or a

proceeding in court for the collection of such tax may be begun
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without assessment, at any time." Petitioners did not file a

return for any of the years at issue. Consequently, the respective periods of limitations applicable to those years have not

expired.

Petitioners also contend on brief: 

The tax returns for petitioners for the years 1982-1987

were prepared by respondent using information summoned

from petitioners and produced by them under protest. 

The deficiencies claimed by respondent for the years

1982-1987 are based on the records seized from petitioners. Petitioners filed this appeal claiming the

income attributed to them is not correct and that they

were not granted the benefit of proper deductions and

various elections, especially filing status. Petitioners contend that their records were seized in violation

of their right to privacy. Indeed, if a citizen has a

right to privacy concerning sexual acts and the killing

of an unborn child, petitioners have the right to

privacy with regard to their income. Those records

were used by respondent, despite petitioners' objection, to * * * prepare tax returns. Petitioners disagree with the content of those returns. Petitioners

have stated their objections. Respondent listed the

person who prepared the returns as a witness, but did

not call him to testify. There was no testimony or

evidence introduced by respondent at the trial to

substantiate income attributable to petitioners. In

the absence of such testimony or evidence, the court

must conclude that there are no deficiencies. 

We reject petitioners' position. Petitioners have not submitted

any evidence, such as the records which they provided to respondent, that supports their general and conclusory contention that

respondent's income determinations, which they concede were based

on those records, are in error. Nor have petitioners supported

on the record before us their general and conclusory assertion

that respondent incorrectly determined the deductions and elec-
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tions to which they claim they are entitled for the years at

issue. 

We also reject petitioners' specific contention that respondent used the incorrect filing status in calculating the deficiencies at issue. Respondent issued separate notices to each

petitioner for the years at issue in which the respective deficiencies were determined on the basis of applying tax rates for

married individuals filing separate returns. Petitioners seem to

be claiming that they are entitled to use the tax rates applicable to married individuals filing joint returns. The record

establishes that petitioners did not file joint returns for the

years at issue. Indeed, they filed no returns for those years. 

They jointly filed a petition with this Court contesting the

determinations in the notices. Based on the record before us, we

find that petitioners have not shown that the filing status used

by respondent in the notices is incorrect. We further find that

petitioners are not entitled to use the tax rates applicable to

married individuals filing joint returns. 

Petitioners contend that they are not liable for the additions to tax determined by respondent for the years at issue

because their religious beliefs, to which they sincerely adhere,

precluded them from filing returns and paying tax for those

years. They also maintain that they have been "persecuted" for

their failure to file returns and pay tax. On the instant

record, we find that petitioners have not satisfied their burden
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3 See also Lull v. Commissioner, T.C. Memo. 1978-74, affd. per

curiam 602 F.2d 1166 (4th Cir. 1979).

4 We have considered all of petitioner's arguments that are not

discussed herein, and we find them to be without merit.

of establishing that respondent's determinations under sections

6651, 6653(a), and 6654 are erroneous. See Adams v. Commissioner, supra.

3

Based on our examination of the entire record before us, we

find that petitioners have not satisfied their burden of showing

error in any of respondent's determinations in the notices.4

Decision will be entered

for respondent.