T.C. Memo. 1996-85
UNITED STATES TAX COURT
HENRY F. WESSELMAN, Petitioner, v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10505-95. Filed February 28, 1996.
Henry F. Wesselman, pro se.
John W. Duncan, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge John F. Dean pursuant to section 7443A(b)(4) and Rules
180, 181, and 183.1 The Court agrees with and adopts the opinion
of the Special Trial Judge, which is set forth below.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure, unless otherwise indicated.
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OPINION OF THE SPECIAL TRIAL JUDGE
DEAN, Special Trial Judge: This matter is before the Court
on respondent's Motion for Summary Judgment. Respondent contends
that she is entitled to summary judgment on the ground there is
no genuine issue as to any material fact and a decision may be
entered as a matter of law.
Background
On March 31, 1995, respondent issued a statutory notice of
deficiency to petitioner determining Federal income tax
deficiencies and additions to tax as follows:
Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654
1991 $6,725 $1,681 $79
1992 8,662 2,166 378
1993 22,523 5,631 942
The deficiencies in petitioner's income taxes are based on
respondent's determination that petitioner failed to report a
number of items of income for the years 1991, 1992, and 1993,
including gross receipts from a trade or business, interest,
dividends, and proceeds from the sale or redemption of
securities.
The addition to tax under section 6651(a)(1) is based on
respondent's determination that petitioner's failure to file
timely an income tax return for each of the years at issue was
not due to reasonable cause. The addition to tax under section
6654(a) is based on respondent's determination that petitioner
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failed to pay the requisite amount of estimated income taxes for
1991, 1992, and 1993.
On June 16, 1995, petitioner filed a petition in which he
disputes all of the deficiencies and additions to tax. In his
petition he also alleges that although he is a "state citizen of
Illinois [not State of Illinois]", he is not a United States
citizen2, or "resident alien", and is not a nonresident alien
that is engaged in a U.S. trade or business.
Respondent filed an answer to the petition on July 10, 1995,
followed on August 14, 1995, by the subject motion for summary
judgment.
By Order dated August 17, 1995, this matter was set for
hearing in St. Louis, Missouri, on October 2, 1995. The case was
called for hearing on that date and both petitioner and counsel
for respondent appeared. At the hearing, respondent waived oral
argument in support of her motion. Petitioner's oral argument
consisted of the usual, patently frivolous, tax protester
arguments.
Although admitting to "having a job" and to receiving
"compensation" for his work, petitioner nevertheless takes the
position that for the years 1991 through 1993, he was not subject
to Federal income tax because: (a) "26 C.F.R." is not published
2
In an attempt to have his cake as well as eat it,
petitioner states, in a document denominated "Affidavit in
Support of Petition", that Illinois is "united by and under the
Constitution of the United States."
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in the Federal Register; (b) the statutory notice of deficiency
contains information from respondent's "Business Master File" and
petitioner is "not in any business of any kind"; (c) he reserves
all his "remedies as for [sic] the Uniform Commercial Code";
(d) he is not a United States citizen (but admits being born in
Illinois); (e) he does not know what tax return to file because
there is no OMB (Office of Management and Budget) number and
expiration date on Form 1040; and (f) the income tax only applies
to the District of Columbia, Guam, and Puerto Rico.
Many of petitioner's arguments were in the form of a
question, such as "What IRS director -- district director am I
dealing with? Is it Guam? Is it Puerto Rico?" Although
admonished more than once by the Court that the pertinent
question for the hearing was whether there was a factual dispute
about his receipt of unreported income in the years at issue,
petitioner presented only nonsensical "legal" tax protester
arguments.
Discussion
Rule 1213 provides that either party may move for summary
adjudication upon all or any of the legal issues in dispute if
the moving party can show that there is no genuine issue as to
3
Rule 121 is derived from Fed. R. Civ. P. 56. Therefore,
authorities interpreting the latter will be considered by the
Court in applying our Rule. Espinoza v. Commissioner, 78 T.C.
412, 415-416 (1982).
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any material fact, and that a decision may be rendered as a
matter of law.
The moving party has the burden of "showing" the absence of
a genuine issue as to any material fact. See Espinoza v.
Commissioner, 78 T.C. 412, 416 (1982), and cases cited therein.
In Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the
Supreme Court described the "showing" that must be made by the
moving party:
a party seeking summary judgment always bears
the initial responsibility of informing the
* * * court of the basis for its motion, and
identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of
material fact. * * *
In Celotex, the Supreme Court held that the moving party in
a summary judgment action need not in all cases introduce
evidence negating an essential element of the opponent's claim in
order to prevail on the motion. If the moving party can make a
"showing" from the record of "a complete failure of proof
concerning an essential element of the nonmoving party's case"
and on which the nonmoving party will bear the burden of proof at
trial, there can be "'no genuine issue as to any material fact,'"
with respect to that claim. Id. at 322-323.4
4
See also Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th
Cir. 1986), a case cited by the Court in Celotex Corp. v.
Catrett, 477 U.S. 317, 319 (1986), wherein it is stated: "If the
moving party can show that there is no evidence whatever to
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Here petitioner has the burden of proof to show that
respondent's determinations are erroneous. Rule 142(a); Welch v.
Helvering, 290 U.S 111 (1933); Beard v. Commissioner, 82 T.C.
766, 773 (1984), affd. 793 F.2d 139 (6th Cir. 1986). Petitioner
has not met that burden in this matter as his only objections to
respondent's determined deficiencies in and additions to tax are
based on frivolous tax protestor arguments. We need not address
these arguments,5 see Crain v. Commissioner, 737 F.2d 1417 (5th
Cir. 1984).
One of the purposes of summary judgment, as provided by
Rule 121, is to isolate and dispose of factually unsupported
claims or defenses. Celotex v. Catrett, supra at 324; see also
Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). To that end,
respondent's motion is appropriate in this case. Petitioner
admits that he received "compensation" and that he did not file
Federal income tax returns reporting income.6 We find that there
is a complete failure of proof by petitioner; he can point to no
evidence in the record to show that respondent's determinations
are incorrect. Based on the record, respondent is entitled to
establish one or more essential elements of a claim on which the
opposing party has the burden of proof, trial would be a bootless
exercise, fated for an inevitable result".
5
We direct petitioner's attention to respondent's memorandum
in support of her motion for summary judgment for cases holding
petitioner's tired claims to be absurd.
6
Petitioner refused to say whether he filed Illinois income
tax returns for the years at issue.
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summary judgment as a matter of law, and we so hold. See, e.g.,
Beard v. Commissioner, supra.
We turn now to an award of a penalty against petitioner
under section 6673(a). The Court may on its own initiative
require a taxpayer to pay such a penalty to the United States
where the circumstances justify its imposition. Horn v.
Commissioner, 90 T.C. 908, 945 (1988).
Section 6673(a)(1) authorizes the Tax Court to require a
taxpayer to pay to the United States a penalty not in excess of
$25,000 whenever it appears that proceedings have been instituted
or maintained by the taxpayer primarily for delay or that the
taxpayer's position in such proceeding is frivolous or
groundless.
The record in this case convinces us that petitioner was not
interested in disputing the merits of either the deficiencies in
income tax or the additions to tax determined by respondent in
the notice of deficiency. Rather, the record demonstrates that
petitioner regards this case as a vehicle to protest the tax laws
of this country and to espouse his own misguided views.
A petition to the Tax Court is frivolous "if it is contrary
to established law and unsupported by a reasoned, colorable
argument for change in the law." Coleman v. Commissioner, 791
F.2d 68, 71 (7th Cir. 1986), affg. an unreported order of this
Court. Based on well-established law, petitioner's position is
frivolous and groundless.
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We are also convinced that petitioner instituted and
maintained this proceeding primarily, if not exclusively, for
purposes of delay. Dealing with this matter wasted the Court's
time, respondent's time, and taxpayers with genuine controversies
were delayed.
In view of the foregoing, we will exercise our discretion
under section 6673(a)(1) and require petitioner to pay a penalty
to the United States in the amount of $5,000. See Fox v.
Commissioner, 969 F.2d 951, 953 (10th Cir. 1992), affg. T.C. Memo
1991-240; Crain v. Commissioner, supra at 1417-1418; Coulter v.
Commissioner, 82 T.C. 580, 584-586 (1984).
An order and decision will be
entered granting respondent's
Motion for Summary Judgment and
requiring petitioner to pay a
penalty pursuant to section
6673(a).