T.C. Memo. 1999-418
UNITED STATES TAX COURT
DAVID ANTHONY AVERY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9970-98. Filed December 23, 1999.
David Anthony Avery, pro se.
Jeanne Gramling, for respondent.
MEMORANDUM OPINION
POWELL, Special Trial Judge: Respondent determined a
deficiency in petitioner’s 1994 Federal income tax and an
accuracy-related penalty under section 6662(a)1 in the respective
amounts of $4,940 and $988.
1
Section references are to the Internal Revenue Code in
effect for the year in issue, and Rule references are to the Tax
Court Rules of Practice and Procedure.
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The issues are whether provisions of the Internal Revenue
Code violate the Thirteenth Amendment to the Constitution and
whether petitioner is liable for the penalty under section
6662(a).
The facts may be summarized as follows. Petitioner resided
in Asheboro, North Carolina, at the time the petition was filed.
In the notice of deficiency respondent determined that petitioner
had unreported nonemployee compensation in the amount of $1,040
and disallowed itemized deductions in the amount of $20,750. At
trial, petitioner offered no evidence. Rather, he filed a motion
for summary judgment arguing that the Internal Revenue Code
violates the Thirteenth Amendment. If petitioner’s
constitutional argument fails, the decision will be entered for
respondent because petitioner has the burden of establishing that
respondent’s determination is incorrect. See Rule 142(a).
The first section of the Thirteenth Amendment, in relevant
part, states: “Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.”
The Court of Appeals for the Tenth Circuit has noted that
“if the requirements of the tax laws were to be classed as
servitude, they would not be the kind of involuntary servitude
referred to in the Thirteenth Amendment.” Porth v. Brodrick, 214
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F.2d 925, 926 (10th Cir. 1954); see also Peeples v. Commissioner,
T.C. Memo. 1986-584, affd. without published opinion 829 F.2d
1120 (4th Cir. 1987); Lyon v. Commissioner, T.C. Memo. 1978-347;
Vernaccini v. Commissioner, T.C. Memo. 1974-66. We shall deny
petitioner’s motion for summary judgment and sustain respondent's
determination as to the deficiency.
Respondent also determined that petitioner is liable for an
accuracy-related penalty under section 6662(a) for negligence.
Section 6662(a) provides that "there shall be added to the tax an
amount equal to 20 percent of the portion of the underpayment to
which this section applies." Section 6662 applies to "the
portion of any underpayment which is attributable to", inter
alia, negligence or disregard of the rules or regulations. Sec.
6662(b)(1). Negligence "includes any failure to make a
reasonable attempt to comply with the provisions * * * [of the
Internal Revenue Code], and the term 'disregard' includes any
careless, reckless, or intentional disregard." Sec. 6662(c).
Petitioner apparently argues that the Internal Revenue Code
violates the Thirteenth Amendment and that this argument “has
never been presented to the Court.” He, therefore, contends that
he is not liable for the negligence penalty even if we were to
reject this argument. As is obvious from the cases cited supra,
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this Court and others have considered petitioner’s argument and
rejected it. Respondent’s determination of the penalty under
section 6662(a) is sustained.
An appropriate order
and decision will be entered.