T.C. Memo. 1998-42
UNITED STATES TAX COURT
WILLIAM C. REICHENBACH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 27706-96. Filed February 5, 1998.
William C. Reichenbach, pro se.
Lynn M. Brimer, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: On September 30, 1996, respondent issued a
notice of deficiency to petitioner based on his failure to file
Federal income tax returns for 1993 and 1994 and report income
from the receipt of wages, gain from the sale of property, and
taxable distributions from qualified retirement plans.
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Respondent determined deficiencies and additions to tax as
follows:
Additions to Tax
Sec. Sec.
Year Deficiency 6651(a)(1) 6654
1993 $37,428 $6,397 $1,017
1994 41,918 8,829 1,782
Petitioner petitioned the Court on December 30, 1996, to
redetermine respondent's determination of these deficiencies and
additions to tax.
We must decide: (1) Whether petitioner is liable for the
deficiencies determined by respondent; (2) whether petitioner is
liable for the additions to tax determined by respondent under
section 6651(a)(1); (3) whether petitioner is liable for the
additions to tax determined by respondent under section 6654; and
(4) whether petitioner is liable for a penalty under section
6673. We hold for respondent on all issues. We also hold that
petitioner is liable for a penalty under section 6673 and require
him to pay to the United States a penalty of $5,000. Unless
otherwise stated, section references are to the Internal Revenue
Code in effect for the years in issue, and Rule references are to
the Tax Court Rules of Practice and Procedure. Dollar amounts
are rounded to the nearest dollar.
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FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in
Lake, Michigan, when he petitioned the Court.
During 1993 and 1994, petitioner was employed by and
received wages from General Motors Corp. totaling $69,805 and
$33,183, respectively. On September 16, 1993, petitioner sold
property located in Essexville, Michigan, for $79,900.
Petitioner had purchased this property in or around 1962 for
$15,500. During 1994, petitioner received two distributions from
qualified retirement plans: $69,079 from his individual
retirement account maintained by Merrill Lynch, and $15,380 from
General Motors Hourly-Rate Employees' Pension Trust.1 During
1993 and 1994, petitioner did not file Federal income tax returns
or make any estimated tax payments; petitioner had $11,842 and
$6,603, respectively, in Federal income taxes withheld from his
wages.
Respondent determined that petitioner should have reported
income as follows: For 1993, $69,805 in wages and $73,140 in net
capital gains;2 for 1994, $33,183 in wages and $84,459 in taxable
1
At the end of 1994, petitioner was 58 years old. See
sec. 72(t)(2)(A)(i).
2
The notice of deficiency identifies petitioner's net
(continued...)
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distributions. Respondent also determined that petitioner was
liable for additional tax under section 72(t). After an
adjustment for the standard deduction of a
married-filing-separate individual, respondent calculated
petitioner's 1993 and 1994 tax liabilities at $37,428 and
$41,918, respectively. Respondent credits petitioner for $11,842
and $6,603 in Federal income taxes withheld for 1993 and 1994,
respectively, to be applied against the determined deficiencies.
OPINION
As an initial matter, petitioner moved during trial to have
his case dismissed for lack of jurisdiction. He contends that
the Court lacks jurisdiction to hear cases involving withholding
taxes and that withholding taxes are in issue in this case. We
disagree. Petitioner failed to file Federal income tax returns
and report income. Petitioner's Federal income tax liabilities
are in issue. Respondent issued a valid notice of deficiency,
and petitioner filed a timely petition with the Court.
Consequently, the Court has jurisdiction over this case, and we
shall deny petitioner's motion. See secs. 6212, 6213, and 6214;
see also Cross v. Commissioner, 98 T.C. 613, 615 (1992); Pyo v.
Commissioner, 83 T.C. 626, 632 (1984).
2
(...continued)
capital gain as $73,140, based on petitioner's sale of property
at a sale price of $79,900 and a basis of $6,760. Respondent now
concedes that petitioner's basis in the property is $15,500, and
that his net capital gain is $64,400.
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As to all issues, respondent's determinations are presumed
correct, and the burden is on petitioner to show that the
determinations are wrong. Rule 142(a); Welch v. Helvering, 290
U.S. 111 (1933).
I. Respondent's Deficiency Determination
The first issue for decision is whether petitioner is liable
for the deficiencies determined by respondent. Respondent's
deficiency determinations are based on petitioner's receipt of
wages, gain from the sale of property, taxable distributions from
qualified retirement plans, and the section 72(t) 10-percent
additional tax for early distributions from qualified retirement
plans. Instead of attempting to challenge the merits of
respondent's determinations, petitioner raises numerous "tax
protester" arguments.3 We shall not address petitioner's
assertions as to the validity of the Federal income tax system
"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).
Section 61(a) defines an individual's gross income as "all
income from whatever source derived". Respondent determined that
compensation for services, gains derived from dealings in
3
Among other things, petitioner makes the following
arguments: That wages are not taxable income, and that the Forms
W-2 show only "employment taxes withheld" and not any kind of tax
owed by him.
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property,4 and distributions from qualified retirement plans5
were includable in petitioner's gross income for the years in
issue, and that the distributions from qualified retirement plans
were subject to additional tax under section 72(t). Petitioner
presented neither evidence nor argument that showed error in
respondent's determinations. Consequently, with the one
modification to reflect respondent's concession as to
petitioner's increased basis in the property sold, we sustain the
deficiencies determined by respondent.
II. Section 6651 -- Failure To File
Respondent determined that petitioner is liable for
additions to tax under section 6651(a)(1). Section 6651(a)(1)
imposes an addition to tax for failure to file a return timely
unless the taxpayer shows that the failure was due to reasonable
cause and not willful neglect. See Kotmair v. Commissioner,
86 T.C. 1253, 1263 (1986). A failure to file timely is due to
reasonable cause if the taxpayer exercised ordinary business care
and prudence and, nevertheless, was unable to file the return
4
At trial, petitioner testified that he had an additional
$21,000 basis in the property due to a corresponding payment made
to his ex-wife as part of their divorce settlement. Petitioner
submitted no documentation or additional evidence in support of
his claim, and we do not find his testimony credible. Therefore,
petitioner realized gain in the amount of $64,400, and because
petitioner has failed to show any exemption from the recognition
of that gain, it is fully includable in his gross income for
1993. See secs. 61(a)(3), 1034, 1221.
5
See secs. 72, 402(a), 408(d)(1).
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within the prescribed time. Sec. 301.6651-1(c)(1), Proced. &
Admin. Regs. Willful neglect means a conscious, intentional
failure or reckless indifference. United States v. Boyle, 469
U.S. 241, 245 (1985). Petitioner admittedly filed no returns
for 1993 and 1994 although the amount of income he received
required him to do so. See sec. 6012. We find that petitioner's
failure to file was not due to reasonable cause. We sustain
respondent's determination on this issue.
III. Section 6654 -- Failure To Pay Estimated Income Tax
Respondent determined that petitioner underpaid his
estimated income tax and is liable for additions to tax under
section 6654. Where payments of tax, either through withholding
or by making estimated tax payments, do not equal the percentage
of the total liability required under the statute, imposition of
the addition to tax under section 6654 is automatic, absent a
showing that the taxpayer has met one of the exceptions contained
therein. See Recklitis v. Commissioner, 91 T.C. 874, 913 (1988);
Tillman v. Commissioner, T.C. Memo. 1996-8. Because petitioner
has not shown that any one of the exceptions applies, we sustain
respondent's determination on this issue.
IV. Section 6673--Penalty Awarded by Court
We decide sua sponte to impose a penalty upon petitioner
under section 6673(a). Section 6673(a)(1) authorizes the Court
to require a taxpayer to pay to the United States a penalty not
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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. A position 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 persisted in maintaining his frivolous arguments
throughout this proceeding, even after being warned by the Court
and after having received notice from the Court in a prior case.6
On the basis of the record, we conclude that the proceedings
herein were instituted primarily for delay and that petitioner's
position is both frivolous and groundless. Accordingly, we
exercise our discretion and award a penalty to the United States
under section 6673 in the amount of $5,000. See Coulter v.
Commissioner, 82 T.C. 580, 584-586 (1984); Abrams v.
Commissioner, 82 T.C. 403, 408-411 (1984).
We have reviewed petitioner's other arguments and find them
to be without merit.
To reflect the foregoing,
6
Petitioner was before this Court in Reichenbach v.
Commissioner, T.C. Memo. 1995-369, affd. without published
opinion 99 F.3d 1139 (6th Cir. 1996). In that case, we found
petitioner's "shopworn tax-protester type arguments" to be
without merit.
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An appropriate order will
be issued, and decision will
be entered under Rule 155.