T.C. Memo. 1996-328
UNITED STATES TAX COURT
VIVIAN D. RODRIGUEZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 561-96. Filed July 18, 1996.
Vivian D. Rodriguez, pro se.
Lynda B. Taylor, for respondent.
MEMORANDUM OPINION
NAMEROFF, Special Trial Judge: This case is before the
Court on respondent's Motion to Dismiss For Failure to State a
Claim And To Impose A Penalty Under I.R.C. Section 6673,1 filed
pursuant to Rule 40. This case was assigned pursuant to section
1
All section references are to the Internal Revenue Code
in effect for the year at issue. All Rule references are to the
Tax Court Rules of Practice and Procedure.
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7443A(b)(3) and Rules 180, 181, and 182 by order of the Chief
Judge. In the notice of deficiency, respondent determined a
deficiency in petitioner's Federal income tax for the taxable
year 1989 in the amount of $2,366, additions to tax under
sections 6651(a)(1) in the amount of $1,192, and 6654(a) in the
amount of $159, and a penalty under section 6662(a) in the amount
of $473.
The adjustments giving rise to the above deficiencies,
additions to tax, and penalty are based upon the failure of
petitioner to file a tax return for 1989 and report wages of
$20,873. Petitioner, a California resident, alleges in the
petition that she is "an individual, American citizen (Domestic)
not a United States citizen and/or resident living abroad
(National)" and that the addition to tax under section 6651(a)(1)
only applies to Alcohol, Tobacco, and Firearms revenue.
Petitioner also alleges that she does not know the meaning of
"wages" and that she has been denied due process. She alleges
that she has not been engaged in "any other taxable activity
other than employment, all of which was within the jurisdictional
boundaries of the State of California." Thus she contends that
taxes relating to "EMPLOYMENT" are not subject to the deficiency
procedures of section 6211. Petitioner makes further allegations
in the petition, which are common in tax protester petitions,
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regarding the method whereby she was selected for audit, as well
as the audit techniques utilized by respondent.
Subsequent to the filing of respondent's motion, the Court
noted that it reviewed the petition and agreed with respondent
that the allegations therein were tax protester allegations that
have been repeatedly rejected by this and other Courts. The
petitioner was ordered to file an objection, if any, to
respondent's motion or, alternatively, an amended petition that
alleged adequate assignments of errors and statements of facts in
support of those assignments of error as to the merits of
respondent's determinations. Petitioner did not file an
objection, an amended petition, or any other response. Under
these premises, no useful purpose would be served by affording
the parties further hearing in this matter.
In her motion to dismiss, respondent contends that the
petitioner fails to allege clear and concise assignments of error
in respondent's deficiency determinations in violation of Rule
34(b)(4). Further, respondent contends that the petition fails
to allege clear and concise lettered statements of fact on which
petitioner bases the assignments of error, in violation of Rule
34(b)(5). A judgment on the pleadings is appropriate where
petitioner raises no justiciable issues. See Abrams v.
Commissioner, 82 T.C. 403, 408 (1984); Brayton v. Commissioner,
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T.C. Memo. 1989-664, affd. without published opinion 923 F.2d 861
(9th Cir. 1991).
Petitioner makes tax protester arguments that have been
heard by this Court on many occasions and rejected. The short
answer to petitioner's contentions is that she is not exempt from
Federal income tax. See Abrams v. Commissioner, supra at 406-
407. Furthermore, this Court generally (as in the case here)
will not look behind a deficiency notice to examine evidence used
or the propriety of the Commissioner's motives, or the
administrative policy or procedures involved in making her
determinations. Abrams v. Commissioner, supra at 406; Riland v.
Commissioner, 79 T.C. 185, 201 (1982); Greenberg's Express Inc.
v. Commissioner, 62 T.C. 324, 327 (1974).
Petitioner has failed to raise any issue with regard to the
amount of her income or deductions, or the correct amount of her
tax liability, including the additions to tax and penalty.
Accordingly, she has not raised any justiciable issues, and
respondent's motion to dismiss will be granted.
Section 6673 authorizes this Court to impose a penalty in
favor of the United States, in an amount not to exceed $25,000,
whenever it appears that the taxpayer's position in a proceeding
is frivolous, groundless, or instituted or maintained primarily
for delay. Petitioner has made frivolous arguments. In the
Court's order for an objection or amended petition, the Court
noted that wages are taxable and section 6651(a)(1) does pertain
to income tax. Petitioner was advised that the allegations in
the petition were similar to those in other cases in which
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section 6673 penalties have been awarded. Nevertheless,
petitioner took no further action and made no response. In view
of the above, respondent's request for a penalty under section
6673 will be granted, and petitioner is required to pay the
United States a penalty of $1,000.
An appropriate order and decision
will be entered for respondent.