Langley v. Commissioner

T.C. Memo. 1996-164

UNITED STATES TAX COURT

STEVEN MATTHEW LANGLEY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 27042-95. Filed April 1, 1996.

Steven Matthew Langley, pro se.

Lynne Camillo and Lynda B. Taylor, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4) and Rules 180, 181, and 183.1 The Court agrees with

1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable years in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
 - 2 -

and adopts the Opinion of the Special Trial Judge, which is set

forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

ARMEN, Special Trial Judge: This case is before the Court

on (1) Respondent's Motion To Dismiss For Failure To State A

Claim And To Impose A Penalty Under I.R.C. § 6673, filed pursuant

to Rule 40, and (2) Petitioner's Motion For Dismissal For Lack Of

Jurisdiction.

Petitioner resided in Phoenix, Arizona, at the time that his

petition was filed with the Court.

Respondent's Notices of Deficiency

By statutory notices dated October 5, 1995, respondent

determined deficiencies in, and additions to, petitioner's

Federal income taxes as follows:

Additions to tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654(a)

1987 $262 $100 ---
1989 3,760 940 $254
1990 9,601 2,400 633
1991 763 116 ---

The deficiencies in income taxes are based on respondent's

determination that during the taxable years in issue, petitioner

received the following amounts of unreported income:

Income 1987 1989 1990 1991

Wages --- --- --- $5,115
Schedule C $2,130 $16,125 $33,873 2,944
Interest 996 37 22 ---
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The deficiencies include self-employment taxes and, for the

taxable years 1990 and 1991, the deduction authorized by section

164(f) for one-half of such taxes. The deficiency for 1991 does

not take into account income tax withheld from petitioner's

wages. Sec. 6211(a), (b)(1).

The additions to tax under section 6651(a)(1) are based on

respondent's determination that petitioner's failure to file

timely income tax returns for the taxable years in issue was not

due to reasonable cause. Finally, the additions to tax under

section 6654(a) are based on respondent's determination that

petitioner failed to pay the requisite estimated income tax for

the taxable years in issue.

Petitioner's Petition

Petitioner filed a petition for redetermination on December

29, 1995. The petition admits that "All monies paid to me have

been wages" and alleges that "Only income is taxable, not wages

or salaries". The petition also alleges as follows:

There is not enough pages to submit all the U.S. court
cases to prove that income is taxable and wages are
not. Tax on wages are volentary [sic]. I do not wish
to participate.

Respondent's Rule 40 Motion and Subsequent Developments

As indicated, respondent filed a Motion To Dismiss For

Failure To State A Claim And To Impose A Penalty Under I.R.C. §

6673 on February 16, 1996. Respondent's motion concludes as

follows:
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Petitioner filed this petition as a protest to paying
income taxes. Such an action falls within the conduct
proscribed by I.R.C § 6673.

On February 20, 1996, shortly after respondent filed her

motion to dismiss, the Court issued an order calendaring

respondent's motion for hearing and also directing petitioner to

file a proper amended petition in accordance with the

requirements of Rule 34. Specifically, the Court directed

petitioner to file, by March 14, 1996, an amended petition

setting forth with specificity each error allegedly made by

respondent in the determination of the deficiencies and separate

statements of every fact upon which the assignments of error are

based.

Petitioner failed to respond to the Court's order to file an

amended petition. However, on March 12, 1996, petitioner filed

his Motion For Dismissal For Lack Of Jurisdiction. In his

motion, petitioner continues to argue that compensation is not

taxable. In addition, petitioner alleges in his motion, inter

alia, that "Petitioner is not a taxpayer within the purview of

the Internal Revenue Code", that "Petitioner is not located in

any area of jurisdiction subject to the United States Congress",

and that "The United States Government is a foreign corporation

with respect to the states". Petitioner's motion concludes, in

part, as follows:

Unless this Court can clearly state that the several
states united have been overthrown and conquered by
Congress, this Court is without jurisdiction relating
to matters outside its venue.
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A hearing was held in this case in Washington, D.C., on

March 20, 1996. Counsel for respondent appeared at the hearing

and presented argument on the pending motions. Petitioner did

not appear at the hearing, nor did petitioner file a statement

with the Court pursuant to Rule 50(c).2

Discussion

Rule 40 provides that a party may file a motion to dismiss

for failure to state a claim upon which relief can be granted.

We may grant such a motion when it appears beyond doubt that the

party's adversary can prove no set of facts in support of a claim

which would entitle him or her to relief. Conley v. Gibson, 355

U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th

Cir. 1982).

Rule 34(b)(4) requires that a petition filed in this Court

contain clear and concise assignments of each and every error

which the taxpayer alleges to have been committed by the

Commissioner in the determination of the deficiencies and the

additions to tax in dispute. Rule 34(b)(5) further requires that

the petition contain clear and concise lettered statements of the

facts on which the taxpayer bases the assignments of error. See

Jarvis v. Commissioner, 78 T.C. 646, 658 (1982). The failure of

2
In its Order dated Feb. 20, 1996, the Court reminded the
parties of the applicability of Rule 50(c), which provides for
the submission of a written statement in lieu of, or in addition
to, attendance at the hearing.
 - 6 -

a petition to conform with the requirements set forth in Rule 34

may be grounds for dismissal. Rules 34(a)(1); 123(b).

In general, the determinations made by the Commissioner in a

notice of deficiency are presumed to be correct, and the taxpayer

bears the burden of proving that those determinations are

erroneous. Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S.

79, 84 (1992); Welch v. Helvering, 290 U.S. 111, 115 (1933).

Moreover, any issue not raised in the pleadings is deemed to be

conceded. Rule 34(b)(4); Jarvis v. Commissioner, supra at 658

n.19; Gordon v. Commissioner, 73 T.C. 736, 739 (1980).

The petition filed in this case does not satisfy the

requirements of Rule 34(b)(4) and (5). There is neither

assignment of error nor allegation of fact in support of any

justiciable claim. Rather, there is nothing but tax protester

rhetoric and legalistic gibberish. See Abrams v. Commissioner,

82 T.C. 403 (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). Further, petitioner did not file an amended

petition, much less a proper amended petition, as directed by the

Court in its Order dated February 20, 1996. Rather, he filed yet

another document replete with nothing other than additional tax

protester rhetoric.

We see no need to catalog petitioner's contentions and

painstakingly address them. We have dealt with many of them

before. E.g., Devon v. Commissioner, T.C. Memo. 1995-206.
 - 7 -

Moreover, as the Court of Appeals for the Fifth Circuit has

remarked: "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).

Suffice it to say that petitioner is a taxpayer, and that

compensation for personal services is income. E.g., United

States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981)

("Compensation for labor or services, paid in the form of wages

or salary, has been universally held by the courts of this

republic to be income, subject to the income tax laws currently

applicable."). See also sec. 61(a)(1), (2), and (4), defining

gross income to include compensation for services, gross income

derived from business, and interest, respectively.

Because the petition fails to state a claim upon which

relief can be granted, we will grant so much of respondent's

motion that moves to dismiss. See Scherping v. Commissioner, 747

F.2d 478 (8th Cir. 1984). Because there is no merit whatsoever

in petitioner's Motion For Dismissal For Lack Of Jurisdiction,

we will deny that motion.

We turn now to that part of respondent's motion that moves

for an award of a penalty against petitioner under section

6673(a).

As relevant herein, section 6673(a)(1) authorizes the Tax

Court to require a taxpayer to pay to the United States a penalty
 - 8 -

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 notices of deficiency. Rather, the record demonstrates that

petitioner regards this case as a vehicle to protest the tax laws

of this country and 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). Petitioner's position, as set forth

in the petition and in the motion to dismiss for lack of

jurisdiction, consists solely of stale and time-worn tax

protester rhetoric. Based on well established law, petitioner's

position is frivolous and groundless.

We are also convinced that petitioner instituted and

maintained this proceeding primarily, if not exclusively, for

purposes of delay. Having to deal with this matter wasted the

Court's time, as well as respondent's. Moreover, 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
 - 9 -

to the United States in the amount of $1,500. Coleman v.

Commissioner, supra at 71-72; Crain v. Commissioner, supra at

1417-1418; Coulter v. Commissioner, 82 T.C. 580, 584-586 (1984);

Abrams v. Commissioner, supra at 408-411.

In order to reflect the foregoing,

An order of dismissal and

decision will be entered.