T.C. Memo. 1996-339
UNITED STATES TAX COURT
FRANK C. VERBECK, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1760-96. Filed July 29, 1996.
Frank C. Verbeck, Jr., pro se.
Mark A. Weiner, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge Larry L. Nameroff pursuant to section 7443A(b)(4) of the
Code1 and Rules 180, 181, and 183. The Court agrees with and
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.
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adopts the opinion of the Special Trial Judge, which is set forth
below.
OPINION OF THE SPECIAL TRIAL JUDGE
NAMEROFF, Special Trial Judge: This case is before us on
respondent's Motion to Dismiss For Failure to State a Claim and
to Impose a Penalty Under Section 6673. Respondent determined
deficiencies in petitioner's Federal income taxes and additions
to tax as follows:
Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654(a)
1989 $2,504 $626 $168
1990 9,268 2,317 613
1991 7,136 1,784 410
1992 8,020 2,005 349
1993 6,065 1,516 256
1994 2,315 463 119
The adjustments giving rise to the above deficiencies and
additions to tax are based upon the failure of petitioner to file
income tax returns and report his income for the subject years.
The nature of the unreported income determined by respondent in
the two notices of deficiency is "nonemployment compensation" in
all 6 years, plus "imputed income" for the years 1990 through
1993 based upon Bureau of Labor statistics.
The gist of petitioner's allegations in his petition is
that: (1) "The Commissioner and/or his delegate has erroneously
and arbitrarily concluded that Frank C. Verbeck, Jr. is a citizen
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of the United States"2 and "liable for the taxes levied by the
United States Congress"; (2) the "Commissioner arbitrarily and
erroneously determined that petitioner received income"; and (3)
the United States Tax Court lacks the authority to render a
decision in this case because it is not an Article III Court
under the Constitution, and, therefore, without jurisdiction.
Petitioner makes further allegations in the petition, which are
common in tax protester petitions, regarding the allegedly
unconstitutional nonapportioned direct tax, the applicability of
the Administrative Procedure Act, and the method in which he was
selected for audit, as well as the audit techniques utilized by
respondent.
In her motion to dismiss, respondent contends that the
petition fails to allege clear and concise assignments of error
in respondent's deficiency determination 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).
The Court scheduled a hearing on the motion for May 13,
1996, in Los Angeles, California. On that date petitioner did
not appear, but instead filed a Statement in Lieu of Appearance
2
Petitioner alleges that he is an American citizen, but
not a U.S. citizen. Petitioner's address set forth in the
petition is in Sun Valley, California.
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pursuant to Rule 50(c). In the Rule 50(c) statement, petitioner
challenged the "PERSONAM JURISDICTION" of this Court and made
further tax protester allegations, which need not be repeated
herein.
Petitioner has been here before in connection with his 1986
and 1987 tax years. Verbeck v. Commissioner, T.C. Memo. 1995-14,
affd. without published opinion 70 F.3d 122 (9th Cir. 1995). In
that case we dismissed a similar petition for failure to state a
claim and required petitioner to pay a $5,000 penalty pursuant to
section 6673. In that case and in the instant case, petitioner
made tax protester arguments that have been heard by this Court
on many occasions and rejected. See e.g., McCoy v. Commissioner,
76 T.C. 1027 (1981), affd. 696 F.2d 1234 (9th Cir. 1983); Brayton
v. Commissioner, T.C. Memo. 1989-664, affd. without published
opinion 923 F.2d 861 (9th Cir. 1991). As before, the short
answer to petitioner's arguments is that he is not exempt from
Federal income tax. See Abrams v. Commissioner, 82 T.C. 403,
406-407 (1984).
A judgment on the pleadings is appropriate where petitioner
raises no justiciable issues. See Abrams v. Commissioner, supra
at 408; Brayton v. Commissioner, supra. Petitioner has failed to
raise any issue with regard to the amount of his income or
deductions, or the correct amount of his tax liability, including
the additions to tax. Accordingly, he has not raised any
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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 primarily for delay.
Petitioner's actions are clearly frivolous. Indeed, his only
apparent reason to file a petition with this Court to challenge
our jurisdiction was to delay assessment and collection of his
income tax liabilities. Accordingly, we will require petitioner
to pay to the United States a penalty of $10,000 pursuant to
section 6673.
An appropriate order
and decision will be
entered for respondent.