T.C. Memo. 1998-284
UNITED STATES TAX COURT
STEVEN A. MONACO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15291-97. Filed August 5, 1998.
Steven A. Monaco, pro se.
Jonathan J. Ono, for respondent.
MEMORANDUM OPINION
RUWE, Judge: Respondent determined a deficiency of $20,785
in petitioner's 1994 Federal income tax plus additions to tax
pursuant to sections 66511 and 6654 in the respective amounts of
$5,196.25 and $1,070.98. Respondent concedes that one of the
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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adjustments in the notice of deficiency overstated income that
petitioner received from Crawford & Co. by $2,236. There is no
disagreement regarding the remaining items which form the basis
for respondent's deficiency determination, and petitioner does
not argue that he is entitled to any deductions, credits, or
other allowances in addition to those used by respondent.
The only issue raised by petitioner at trial and in his
posttrial brief is his contention that the notice of deficiency
was improper because it was not supported by a properly signed
assessment. Thus, petitioner in his brief makes the following
argument:
Before any liability of any type can be created there
must be an assessment. That assessment must be
certified as a true and correct assessment by an
assessment officer. The Petitioner questions how a
NOTICE OF DEFICIENCY can state that this is "legal
notice" when legal notice could only be legal if it was
supported by a properly signed assessment. What
officer, agent, employee or other person is authorized
to issue a NOTICE OF DEFICIENCY without an assessment
being signed and certified to by an Assessment Officer?
According to IR Code section 6065, the NOTICE OF
DEFICIENCY has been improperly signed. Where is the
attested signature? The Petitioner desires to have the
Assessment Officer or other individual who has
certified to the correctness of this assessment be
identified. If there is no assessment, then the
petitioner would like to know who the person is that
created and caused to be sent a bill for $20,785.00
The Petitioner would like to subpoena that person as a
witness. At the present time, that person remains
unidentified.
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Background
Petitioner resided in Kihei, Hawaii, at the time he filed
the petition. During 1994, petitioner worked as a self-employed
physical therapist and received nonemployee compensation in the
amount of $41,201.23. Also during 1994, petitioner sold a parcel
of real property for $28,000.
Petitioner did not file a timely 1994 Federal income tax
return and has made no payments regarding his 1994 income tax
liability. On October 16, 1995, petitioner sent a Form 1040NR,
U.S. Nonresident Alien Income Tax Return, to respondent's service
center in Philadelphia, Pennsylvania, which was received on
October 20, 1995. Petitioner's Form 1040NR reported zeros on
most lines, including those for income and tax. Petitioner
altered the jurat and in the space for listing his occupation
stated that he had no occupation within the United States.
On April 18, 1997, respondent mailed a notice of deficiency
to petitioner regarding his 1994 income tax liability.
Petitioner timely filed his petition with this Court on July 16,
1997. Respondent has made no assessment of tax regarding
petitioner's 1994 Federal income tax.
In July 1997, petitioner mailed a Form 1040, U.S. Individual
Income Tax Return, for the taxable year 1994 to respondent's
service center in Fresno, California. Except for amounts
representing a claimed standard deduction and personal exemption,
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this Form 1040 contained only zeros. Attached to the Form 1040
was a statement by petitioner that contains what can be described
as typical tax protester arguments that have been universally
rejected by the courts. The position that petitioner now argues
on brief was not included in those arguments.
Discussion
Petitioner's argument that the notice of deficiency is
improper because there has never been a proper assessment of tax
regarding his Federal income tax for 1994 has no bearing on the
outcome of these proceedings. It is true that there has been no
assessment of petitioner's 1994 income tax. It follows that
there is no record of such an assessment. The reason why there
has been no assessment is that section 6213(a) prohibits the
Commissioner from making an assessment of a deficiency in income
tax until the expiration of 90 days from the day a notice of
deficiency is mailed. That section goes on to provide that if a
petition to this Court is filed within the aforementioned 90-day
period, no assessment can be made until after the decision of
this Court becomes final. Sec. 6213(a). Thus, the lack of an
existing assessment is in accordance with the statutory
provisions upon which our jurisdiction is based and raises no
impediment to deciding this case on the facts presented. The
facts presented clearly support respondent's deficiency
determination as modified by the previously mentioned concession.
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As to the addition to tax pursuant to section 6651(a) for
failure to file a timely 1994 return, petitioner bears the burden
of proving that it does not apply. Rule 142(a). The facts
establish that petitioner did not file a 1994 return on or before
April 17, 1995.2 Petitioner mailed to respondent a Form 1040NR
that was received by respondent on October 20, 1995. Even if we
were to consider this a return, it was received over 5 months
from the due date, and the maximum addition to tax under section
6651(a) of 5 percent per month, not to exceed 25 percent, would
apply.
At trial, petitioner stated that he believed that he had
filed a request for an extension of time in which to file his
1994 return. Petitioner failed to produce a copy of such a
request. The records of the Internal Revenue Service indicate
that no such request for extension was filed. On the basis of
record, we find that no such request was filed. We therefore
hold that petitioner is liable for the addition to tax under
section 6651(a).
As to the addition to tax pursuant to section 6654 for
failure to pay estimated income tax, petitioner bears the burden
of proving that it does not apply. Rule 142(a). Petitioner
offered no evidence or argument on this issue. Therefore, we
2
Apr. 15, 1995, fell on a Saturday; therefore, petitioner
had until Monday, Apr. 17, 1995, to file a timely 1994 return.
See sec. 7503.
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hold that petitioner is liable for the addition to tax under
section 6654.
Decision will be entered
under Rule 155.