T.C. Memo. 1998-199
UNITED STATES TAX COURT
GERALD J. AND GAYLE R. MARTINEZ, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19887-95. Filed June 1, 1998.
Gerald J. Martinez, pro se.
Louis John Zeller, Jr. and Emile L. Hebert III, for respon-
dent.
MEMORANDUM OPINION
CHIECHI, Judge: Respondent determined the following defi-
ciencies in, and additions to, the Federal income tax (tax) of
petitioner Gerald J. Martinez (Mr. Martinez) for the years
indicated:
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Additions to Tax
Sec. Sec. Sec. Sec. Sec. Sec.
Year Deficiency 6651(a)(1)1 6653(a)(1) 6653(a)(1)(A) 6653(a)(2) 6653(a)(1)(B) 6654
1982 $20,599 $5,150 $1,030 -- * -- $2,005
1983 26,771 6,693 1,339 -- * -- 1,638
1984 29,989 7,497 1,499 -- * -- 1,885
1985 17,418 4,354 871 -- * -- 998
1986 14,821 3,705 -- $741 -- * 717
1987 16,221 4,055 -- 811 -- * 871
* 50 percent of the interest due on the portion of the underpayment
attributable to negligence. Respondent determined that the entire
amount of the underpayment was attributable to negligence.
Respondent determined the following deficiencies in, and addi-
tions to, the tax of petitioner Gayle R. Martinez (Ms. Martinez)
for the years indicated:
Additions to Tax
Sec. Sec. Sec. Sec. Sec. Sec.
Year Deficiency 6651(a)(1) 6653(a)(1) 6653(a)(1)(A) 6653(a)(2) 6653(a)(1)(B) 6654
1982 $20,599 $5,150 $1,030 -- * -- $2,005
1983 23,433 5,858 1,172 -- * -- 1,434
1984 25,718 6,429 1,286 -- * -- 1,617
1985 12,745 3,186 637 -- * -- 730
1986 9,655 2,414 -- $483 -- * 467
1987 10,834 2,708 -- 542 -- * 582
* 50 percent of the interest due on the portion of the underpayment
attributable to negligence. Respondent determined that the entire
amount of the underpayment was attributable to negligence.
We must decide whether respondent's determinations for each
of the years at issue should be sustained. We hold that they
should.
Background
Some of the facts were orally stipulated and are so found.
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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Mr. Martinez, who at all relevant times was an attorney, and
Ms. Martinez, his spouse, lived in Metairie, Louisiana, at the
time the petition was filed.
Petitioners refused to file tax returns (returns) and pay
tax for the years at issue because of the decision of the Supreme
Court of the United States in Roe v. Wade, 410 U.S. 113 (1973).
Petitioners' refusal to file returns and pay tax for the years at
issue is grounded in their contention that their constitutional
rights will be violated because any tax that they might pay would
be used in part to fund abortions, which is contrary to the
teachings of their religion.
Respondent issued separate notices of deficiency (notices)
to Mr. Martinez and to Ms. Martinez for 1982, 1983, and 1984 and
separate notices to them for 1985, 1986, and 1987. In the
notices, respondent determined that, for the years at issue, each
petitioner had one or more of the following types of community
income/loss: Capital gain/loss, interest income, rental in-
come/loss, employee compensation, nonemployee compensation,
partnership income/loss, dividend income, Schedule C net income,
and/or miscellaneous income.2 Respondent also determined that,
for the years at issue, each petitioner is entitled to itemized
deductions for certain community expenses and to a deduction for
2
In the absence of adequate records for 1984, respondent
determined each petitioner's miscellaneous community income for
that year by reference to bank deposits, cash payments, and
personal and other nondeductible expenditures.
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one personal exemption. In calculating the respective deficien-
cies determined in the notices, respondent applied the tax rates
applicable to married individuals filing separately. Respondent
also determined that, for 1983 through 1987, Mr. Martinez is
liable for self-employment tax.
Discussion
Petitioners bear the burden of proving that respondent's
determinations in the notices are erroneous. Rule 142(a); Welch
v. Helvering, 290 U.S. 111, 115 (1933).
Petitioners contend that they are not liable for tax for the
years at issue because, inter alia:
3. The exercise of petitioners' religion prevents
them from supporting or cooperating with any per-
son or organization engaged in allowing, recom-
mending, encouraging, promoting. performing, or
paying for abortion, or protecting or paying for
the protection of people who allow, recommend,
encourage, promote, perform, or pay for abortions.
4. The computation and payment of money to a person
or organization engaged in allowing, recommending,
encouraging, promoting. performing, or paying for
abortion, or protecting or paying for the protec-
tion of people who allow, recommend, encourage,
promote, perform, or pay for abortions if [sic] a
violation of petitioner's religion.
5. The Constitution of the United States guarantees
petitioners' right to the free exercise of reli-
gion. Article I of the Amendments to the Consti-
tution.
6. An amendment [the 16th Amendment] to the United
States Constitution that was not properly approved
in accordance with provisions for amending the
Constitution and is therefore improperly enforced
is not superior to the guarantees provided in the
First Amendment to the Constitution, in particu-
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lar, the guarantee of the free exercise of reli-
gion.
* * * * * * *
10. The The [sic] contents of the Internal Revenue
Service Code and the methods employed by the In-
ternal Revenue Service to force compliance with
laws that violate the nature [sic] law and the
conscience and religious convictions of a person
violate the Constitutions [sic] and laws of the
United States, in particular the due process
clause of the Fifth Amendment and the equal pro-
tection clause of the Fourteenth Amendment; and
the RICO Statute.
We reject the reasons advanced by petitioners in support of their
position that they are not liable for tax for the years at issue.
In Adams v. Commissioner, 110 T.C. 137, 139 (1998), this Court
concluded that
while petitioner's religious beliefs are substantially
burdened by payment of taxes * * *, the Supreme Court has
established that uniform, mandatory participation in the
Federal income tax system, irrespective of religious belief,
is a compelling governmental interest. * * * As a result,
requiring petitioner's participation in the Federal income
tax system is the only, and thus the least restrictive,
means of furthering the Government's interest. * * * [Cita-
tions omitted.]
See Hernandez v. Commissioner, 490 U.S. 680 (1989); United States
v. Lee, 455 U.S. 252 (1982).
Petitioners further assert that they are not liable for tax
for the years at issue because respondent's "cause of action was
prescribed [sic]" when respondent mailed the notices on June 28,
1995. We disagree. Section 6501(c)(3) provides that, in the
case of failure to file a return, "the tax may be assessed, or a
proceeding in court for the collection of such tax may be begun
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without assessment, at any time." Petitioners did not file a
return for any of the years at issue. Consequently, the respec-
tive periods of limitations applicable to those years have not
expired.
Petitioners also contend on brief:
The tax returns for petitioners for the years 1982-1987
were prepared by respondent using information summoned
from petitioners and produced by them under protest.
The deficiencies claimed by respondent for the years
1982-1987 are based on the records seized from peti-
tioners. Petitioners filed this appeal claiming the
income attributed to them is not correct and that they
were not granted the benefit of proper deductions and
various elections, especially filing status. Petition-
ers contend that their records were seized in violation
of their right to privacy. Indeed, if a citizen has a
right to privacy concerning sexual acts and the killing
of an unborn child, petitioners have the right to
privacy with regard to their income. Those records
were used by respondent, despite petitioners' objec-
tion, to * * * prepare tax returns. Petitioners dis-
agree with the content of those returns. Petitioners
have stated their objections. Respondent listed the
person who prepared the returns as a witness, but did
not call him to testify. There was no testimony or
evidence introduced by respondent at the trial to
substantiate income attributable to petitioners. In
the absence of such testimony or evidence, the court
must conclude that there are no deficiencies.
We reject petitioners' position. Petitioners have not submitted
any evidence, such as the records which they provided to respon-
dent, that supports their general and conclusory contention that
respondent's income determinations, which they concede were based
on those records, are in error. Nor have petitioners supported
on the record before us their general and conclusory assertion
that respondent incorrectly determined the deductions and elec-
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tions to which they claim they are entitled for the years at
issue.
We also reject petitioners' specific contention that respon-
dent used the incorrect filing status in calculating the defi-
ciencies at issue. Respondent issued separate notices to each
petitioner for the years at issue in which the respective defi-
ciencies were determined on the basis of applying tax rates for
married individuals filing separate returns. Petitioners seem to
be claiming that they are entitled to use the tax rates applica-
ble to married individuals filing joint returns. The record
establishes that petitioners did not file joint returns for the
years at issue. Indeed, they filed no returns for those years.
They jointly filed a petition with this Court contesting the
determinations in the notices. Based on the record before us, we
find that petitioners have not shown that the filing status used
by respondent in the notices is incorrect. We further find that
petitioners are not entitled to use the tax rates applicable to
married individuals filing joint returns.
Petitioners contend that they are not liable for the addi-
tions to tax determined by respondent for the years at issue
because their religious beliefs, to which they sincerely adhere,
precluded them from filing returns and paying tax for those
years. They also maintain that they have been "persecuted" for
their failure to file returns and pay tax. On the instant
record, we find that petitioners have not satisfied their burden
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of establishing that respondent's determinations under sections
6651, 6653(a), and 6654 are erroneous. See Adams v. Commis-
sioner, supra.3
Based on our examination of the entire record before us, we
find that petitioners have not satisfied their burden of showing
error in any of respondent's determinations in the notices.4
Decision will be entered
for respondent.
3
See also Lull v. Commissioner, T.C. Memo. 1978-74, affd. per
curiam 602 F.2d 1166 (4th Cir. 1979).
4
We have considered all of petitioner's arguments that are not
discussed herein, and we find them to be without merit.