T.C. Memo. 1995-602
UNITED STATES TAX COURT
VICTORIA AND DENIS M. LYSZKOWSKI, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15038-94. Filed December 21, 1995.
Denis M. Lyszkowski, pro se.
Linda Ann Love, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This case was heard
pursuant to the provisions of section 7443A(b)(3) and Rules 180,
181, and 182.1 Respondent determined a deficiency in the amount
of $377 in petitioners' Federal income tax for the tax year ended
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for the taxable year in issue. All Rule references are
to the Tax Court Rules of Practice and Procedure.
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1991. The issue for decision is whether slot machine winnings
received by petitioner Denis M. Lyszkowski constitute gross
income pursuant to section 61.
The facts in this case have been fully stipulated and are so
found. The stipulated facts and attached exhibits are
incorporated herein by this reference. At the time of filing the
petition herein, petitioners resided at Doylestown, Pennsylvania.
In 1991, Denis M. Lyszkowski (petitioner) received gambling
winnings totaling $2,500 from slot machine play at Caesar's
Boardwalk Regency (Caesar's) in Atlantic City, New Jersey.
Federal income taxes were not withheld from these gambling
winnings. Petitioner received a Form W-2G from Caesar's with
respect to the slot machine winnings. Petitioners did not report
the $2,500 as gross income on their jointly filed 1991 Federal
income tax return. Respondent issued a notice of deficiency
dated May 24, 1994, reflecting a $2,500 increase in petitioners'
gross income. Petitioners filed a timely petition with this
Court for a redetermination of the deficiency.2
The thrust of petitioners' argument is that the $2,500 in
slot machine winnings is not taxable income. Petitioners base
this conclusion on several grounds, namely: (1) Slot machine
2
We note that at the calendar call petitioners filed a motion to
withdraw their petition. The Court denied the motion. Once a timely petition
is filed in response to a notice of deficiency, we have exclusive
jurisdiction. Sec. 6512(a). It is well established that "a taxpayer may not
unilaterally oust the Tax Court from jurisdiction which, once invoked, remains
unimpaired until it decides the controversy." Dorl v. Commissioner, 57 T.C.
720, 722 (1972), affd. 507 F.2d 406 (2d Cir. 1974).
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winnings are exempt from tax pursuant to section 3402(q)(5); (2)
petitioner was not legally required to sign the Form W-2G when he
received his slot machine winnings; (3) petitioner withdrew his
signature on the Form W-2G, thereby removing himself from its
legally binding terms; and (4) the Commissioner has no authority
to issue section 7.6041-1, Temporary Proced. & Admin. Regs., 42
Fed. Reg. 1471 (Jan. 7, 1977), as amended by 42 Fed. Reg. 33286
(June 30, 1977), requiring payers of slot machine winnings to
issue Forms W-2G to payees.
Respondent argues that winnings from slot machines are
includable in gross income and are, therefore, taxable. In
addition, respondent asserts that the Commissioner has the
authority to issue section 7.6041-1, Temporary Proced. & Admin.
Regs., supra, which requires payers of slot machine winnings to
issue Forms W-2G to payees. Respondent concludes that, although
section 3402 exempts slot machine winnings from withholding at
the source, such winnings are not exempt from taxation.
Petitioner's arguments are substantially identical to those
he advanced before this Court regarding the taxability of his
1989 and 1990 slot machine winnings. We found that petitioner
had slot machine winnings in 1989 and 1990 in the amounts of $1
million and $2,500, respectively. See Lyszkowski v.
Commissioner, T.C. Memo. 1995-235, on appeal (3d Cir., Sept. 5,
1995). In that case, we painstakingly addressed each of
petitioner's arguments before concluding that the slot machine
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winnings were taxable. We explained that although section 3402
exempts slot machine winnings from withholding, this section
applies to payers and not to the "ultimate tax liability of the
payees who receive such winnings". In addition, we noted that
petitioner was confusing the exemption from withholding with an
exemption from gross income. We also held that petitioner's
challenge to the Treasury Department's authority to promulgate
section 7.6041-1, Temporary Proced. & Admin. Regs., supra, was
without merit.
There is no question that petitioner's slot machine winnings
represent gross income. See United States v. Monteiro, 871 F.2d
204 (1st Cir. 1989); Johnston v. Commissioner, 25 T.C. 106
(1955). We agree with the analysis presented in Lyszkowski v.
Commissioner, T.C. Memo. 1995-235. We perceive no need to
explain again why the slot machines winnings are taxable income.
The remainder of petitioner's arguments appear to challenge
the authority of the Internal Revenue Service generally. We will
not address arguments which appear to be a protest of the Federal
income tax laws. As the Court of Appeals for the Fifth Circuit
noted: "We perceive no need to refute these arguments with
somber reasoning and copious citation of precedent; to do so
might suggest that these arguments have some colorable merit."
Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984); see
also Sauers v. Commissioner, 771 F.2d 64, 67 (3d Cir. 1985),
affg. T.C. Memo. 1984-367.
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Based on the foregoing, respondent's determination is
sustained.
Decision will be entered
for respondent.