T.C. Memo. 1999-263
UNITED STATES TAX COURT
KENNETH O. AND APRIL C. BUTLER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14118-97. Filed August 5, 1999.
Kenneth O. Butler, pro se.
James R. Robb and Joan S. Dennett, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
PARR, Judge: By separate notices of deficiency, respondent
determined deficiencies in, and additions to, petitioners'
Federal income taxes as follows:
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Kenneth O. Butler
Addition to tax
Year Deficiency Sec. 6651(a)
1988 $272 $100
1989 469 113
1990 1,099 186
1991 1,219 250
1992 461 100
1993 1,635 280
1994 941 115
1995 656 115
April C. Butler
Addition to tax
Year Deficiency Sec. 6651(a)
1988 $272 $100
1989 469 113
1990 1,099 186
1991 1,539 330
1992 461 100
1993 1,196 171
1994 941 115
1995 656 115
All section references are to the Internal Revenue Code in
effect for the taxable years in issue, and all Rule references
are to the Tax Court Rules of Practice and Procedure, unless
otherwise indicated. References to petitioner are to Kenneth O.
Butler.
The issues for decision are: (1) Whether for the years in
issue petitioners had unreported income. We hold they did. (2)
Whether for the years in issue petitioners are liable for an
addition to tax pursuant to section 6651(a). We hold they are.
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Some of the facts have been stipulated and are so found.
The stipulated facts and the accompanying exhibits are
incorporated herein by this reference. At the time the petition
in this case was filed, petitioners resided in Lubbock, Texas.
FINDINGS OF FACT
Petitioners did not file Federal income tax returns for the
years in issue.
Petitioner is retired from the U.S. Navy, and currently
works as a Federal protection officer at the Federal Building in
Lubbock, Texas.
Respondent based the determinations in this case on
information received from third-party payors. In addition,
petitioners have stipulated amounts of income that they received
for the years in issue in the form of wages, pension income,
nonemployee compensation, and interest.
OPINION
The Commissioner's determinations are presumptively correct,
and the taxpayer bears the burden of proving otherwise. See Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
Petitioners do not challenge the facts on which respondent's
determinations are based, nor the calculation of tax. Instead,
petitioners argue that filing Federal income tax returns violates
their rights under the First, Fourth, and Fifth Amendments to the
U.S. Constitution. We now address their contentions in turn.
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Petitioners argue that filing Federal income tax returns
violates their right to free speech under the First Amendment to
the U.S. Constitution. Noncompliance with the tax law is not
protected by the First Amendment. See Mosher v. IRS, 775 F.2d
1292, 1295 (5th Cir. 1985); see also Sloan v. Commissioner, 53
F.3d 799, 800 (7th Cir. 1995), affg. 102 T.C. 137 (1994); Hettig
v. United States, 845 F.2d 794, 795-796 (8th Cir. 1988); Bradley
v. United States, 817 F.2d 1400, 1404-1405 (9th Cir. 1987); McKee
v. United States, 781 F.2d 1043, 1047 (4th Cir. 1986); Collett v.
United States, 781 F.2d 53, 55 (6th Cir. 1985); Eicher v. United
States, 774 F.2d 27, 29-30 (1st Cir. 1985); Hudson v. United
States, 766 F.2d 1288, 1291-1292 (9th Cir. 1985); Kahn v. United
States, 753 F.2d 1208, 1214-1217, 1222-1223 n.8 (3d Cir. 1985);
Welch v. United States, 750 F.2d 1101, 1108-1110 (1st Cir. 1985);
United States v. Malinowski, 472 F.2d 850, 857-858 (3d Cir.
1973).
Petitioner also testified that he is a born again Christian.
While we accept that petitioner is sincere and dedicated to his
religious beliefs, it is well established that religious or moral
objections grounded on the First Amendment do not relieve
petitioners from payment of any portion of their Federal income
tax. The Supreme Court has held:
Because the broad public interest in maintaining a
sound tax system is of such a high order, religious
belief in conflict with the payment of taxes affords no
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basis for resisting the tax. [United States v. Lee,
455 U.S. 252, 260 (1982).]
See also Anthony v. Commissioner, 66 T.C. 367, 373 (1976), affd.
without published opinion 566 F.2d 1168 (3d Cir. 1977); Egnal v.
Commissioner, 65 T.C. 255, 262 (1975); Russell v. Commissioner,
60 T.C. 942, 945 (1973); Muste v. Commissioner, 35 T.C. 913, 918-
919 (1961).
Petitioners next mention that their Fourth Amendment rights
would be violated by filing Federal income tax returns.
Petitioners have not shown that the Fourth Amendment has any
relevance to these facts, and we perceive no basis upon which it
could.
Finally, petitioners argue that their Fifth Amendment rights
would be violated by filing Federal income tax returns. The
Fifth Amendment privilege against self-incrimination protects an
individual from being compelled to disclose information that
could reasonably be expected to furnish evidence needed to
prosecute the claimant for a crime. See Kastigar v. United
States, 406 U.S. 441, 445 (1972); Hoffman v. United States, 341
U.S. 479, 486 (1951). The requirements that petitioners shall
prepare and file their tax returns do not violate the Fifth
Amendment privilege against self-incrimination. See United
States v. Sullivan, 274 U.S. 259 (1927); Kasey v. Commissioner,
457 F.2d 369, 370 (9th Cir. 1972), affg. per curiam 54 T.C. 1642
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(1970). The Fifth Amendment privilege applies when the
possibility of self-incrimination is a real danger, not a remote
and speculative possibility. See Zicarelli v. New Jersey State
Commn. of Investigation, 406 U.S. 472, 478 (1972); Stubbs v.
Commissioner, 797 F.2d 936, 938 (11th Cir. 1986); Heitman v.
United States, 753 F.2d 33, 34-35 (6th Cir. 1984); Davis v.
United States, 742 F.2d 171, 172 (5th Cir. 1984); Moore v.
Commissioner, 722 F.2d 193, 195 (5th Cir. 1984), affg. T.C. Memo.
1983-20; Steinbrecher v. Commissioner, 712 F.2d 195, 197 (5th
Cir. 1983), affg. per curiam T.C. Memo. 1983-12; McCoy v.
Commissioner, 696 F.2d 1234, 1236 (9th Cir. 1983), affg. 76 T.C.
1027 (1981); Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th
Cir. 1982). At trial, respondent stated that petitioner was not
under criminal tax investigation. Accordingly, petitioners'
claim of Fifth Amendment protection is misplaced because they
merely claimed the privilege without showing a danger of self-
incrimination.
Petitioners admit that for taxable years 1990, 1991, 1992,
1993, 1994, and 1995 they resided in Texas, a community property
State. For taxable years 1988 and 1989, petitioner testified
that he and his wife lived and worked in Washington State and
Oregon. Petitioners' time living in Washington State is
irrelevant to respondent's determinations, as it is also a
community property State. In any event, petitioners have not
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provided any evidence as to where and when they lived in Oregon,
nor how that would affect their income tax liability for the
years in issue. Accordingly, respondent's deficiency
determinations are sustained.
In addition, respondent determined additions to tax under
section 6651(a) for failure to file timely returns for the years
at issue.
Section 6651(a) provides for an addition to tax for failure
to file a timely return. The addition to tax is equal to 5
percent of the amount required to be shown as tax on the return,
with an additional 5 percent for each additional month or
fraction thereof during which the failure to file continues, not
exceeding 25 percent in the aggregate.
A taxpayer may avoid the addition to tax by establishing
that the failure to file a timely return was due to reasonable
cause and not willful neglect. See Rule 142(a); United States v.
Boyle, 469 U.S. 241, 245-246 (1985). Petitioners have not
established that their failure to file timely returns was due to
a reasonable cause. Accordingly, we sustain respondent's
determinations on this issue.
For the foregoing reasons,
Decision will be entered
under Rule 155.