Beale v. Commissioner

T.C. Memo. 2000-158

UNITED STATES TAX COURT

RANDOLPH JOHN BEALE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18290-98. Filed May 17, 2000.

Randolph John Beale, pro se.

Felicia L. Branch, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

PARR, Judge: Respondent determined deficiencies in and

additions to petitioner's Federal income taxes as follows:
 - 2 -

Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654

1992 $14,966 $1,816.25 -0-
1993 17,412 2,399.75 $365.81
1994 17,336 2,569.75 492.70
1
1995 15,202 1,466.25 261.76
1
The deficiency amounts listed above do not reflect Federal
income tax withheld from petitioner's wages. See, e.g., sec.
301.6215-1, Proced. & Admin. Regs., which provides that "the
entire amount redetermined as the deficiency by the decision of
the Tax Court which has become final shall be assessed," while
only "the unpaid portion of the amount so assessed shall be paid
by the taxpayer upon notice and demand therefor." (Emphasis
added.)

The issues for decision are: (1) Whether amounts paid as

"family support" were alimony and, therefore, deductible by

petitioner. We hold that certain of these amounts were

deductible by petitioner in the amounts stated. (2) Whether

petitioner may deduct various Schedule C, Profit or Loss From

Business, expenses for the taxable years at issue. We hold he

may not. (3) Whether petitioner is entitled to claim additional

exemptions for his spouse and her two daughters for taxable years

1993 through 1995.1 We hold he is not. (4) Whether petitioner

is entitled to head-of-household filing status in 1993 and

married filing joint return status in 1994 and 1995. We hold he

is not. (5) Whether petitioner is liable for additions to tax

1
The parties stipulated that petitioner was unmarried during
taxable years 1992 and 1993. For taxable year 1992, the proper
filing status of petitioner is "single". For taxable year 1993,
the proper filing status of petitioner is still at issue.
 - 3 -

under section 6651(a)2 for failure to timely file his Federal

income tax returns for the taxable years in issue. We hold he

is. (6) Whether petitioner is liable for additions to tax under

section 6654 for failure to pay estimated tax for the taxable

years in issue. We hold he is.

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. At the time the petition

herein was filed, petitioner resided in Chuluota, Florida.

Petitioner did not file Federal income tax returns for the

years in issue.

At various times during the years in issue, petitioner was

employed full time as an engineer for the following companies:

Linde Hydraulics Corp. (Linde), Hartmann Controls, Inc.

(Hartmann), Motiontek, Inc. (Motiontek), and Worksmart, Inc.

(Worksmart). Petitioner earned income from his full-time

employment as follows:

2
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
 - 4 -

Employer 1992 1993 1994 1995

Linde $57,840 $58,167 $60,585 –-
Hartmann –- –- 4,469 $14,606
Motiontek –- –- –- 10,400
Worksmart -- –- –- 35,476

For taxable years 1992, 1993, and 1994, Linde withheld Federal

income taxes of $7,701, $7,813, and $5,925, respectively, from

petitioner's wages. Additionally, for taxable year 1994,

Hartmann withheld Federal income tax of $857, and for taxable

year 1995, Hartmann, Motiontek, and Worksmart withheld Federal

income tax of $2,845, $900, and $5,592, respectively.

In addition to his full-time employment, petitioner

performed services as an engineering consultant. Petitioner's

consulting business involved working principally for two

companies: Tri-State Hydraulics, Inc. (Tri-State), and American

Fluid Power, Inc. (American). To perform his business services,

petitioner would travel by automobile from his home to

approximately nine client sites in Wisconsin and Illinois.

Petitioner earned nonemployee compensation from his consulting

services as follows:

Employer 1992 1993 1994

Tri-State $6,600 $12,626 $7,000
American 263 1,767 1,212

Petitioner operated his consulting business out of a garage

attached to his residence. The garage contained a desk, a

drafting table, two phones, and filing cabinets. The garage made
 - 5 -

up 15 percent of the total square footage of petitioner's rental

house. During the years in issue petitioner's total annual

housing costs were as follows:

Year Rent Gas Electricity
1992 $7,200 $1,440 $540
1993 7,200 1,500 600
1994 8,700 1,560 660
1995 (not in record)

For 1992 through 1994, petitioner calculated a home office

deduction by multiplying the total costs of rent and utilities by

15 percent.

In addition to his employee and nonemployee compensation,

petitioner received earned interest income from Security Bank,

S.S.B., of $72 in 1992, $76 in 1993, $77 in 1994, and $83 in

1995. Petitioner also received $47 in interest income from

Cornerstone Credit Union in 1995. Finally, petitioner received

$6,916 in unemployment compensation during 1995.

During the years in issue, petitioner made regular payments

to two former wives. Petitioner was divorced from his first

wife, Ms. Sandra Eads, in 1981. Pursuant to a valid, enforceable

divorce judgment filed on May 15, 1981, petitioner is required to

pay Ms. Eads $650 per month as "family support". The judgment

provides in relevant part:

Sixth. The petitioner shall pay to the respondent as
and for family support the sum of Six Hundred Fifty
Dollars ($650.00) per month. Said sum shall be paid
through the Clerk of the Circuit Court of Milwaukee
County on the 5th day of each month, commencing May 5,
1981. Said payments, being for family support shall be
 - 6 -

tax deductible to the petitioner, and taxable to the
respondent [Ms. Eads] on their respective federal and
state income tax returns. * * *

For the taxable years at issue, Ms. Eads included the following

payment amounts as alimony on her Federal income tax returns:

$7,250 in 1992, $7,250 in 1993, $7,200 in 1994, and $3,199 in

1995. Petitioner agrees that these are the amounts he actually

paid.

Petitioner was divorced from his second wife, Ms. Susan

Tang, in May 1989. He was required to pay $400 per month in

"family support". Petitioner had an "agreement in principle"

with Ms. Tang that she would include the payments to her as

income on her Federal income tax return, and petitioner would

claim a deduction for these payments on his Federal income tax

return.

Petitioner was not married at the end of taxable years 1992

and 1993; however, petitioner was married at the end of taxable

years 1994 and 1995. Petitioner's third wife has two daughters.

OPINION

Petitioner has the burden of proof with regard to all the

issues raised in this case. See Rule 142(a).

Issue 1. Whether Petitioner Is Entitled to Alimony Deductions
During the Years in Issue

In this case, petitioner made "family support" payments to

both Ms. Eads and Ms. Tang. Petitioner claims that the amounts
 - 7 -

he paid to Ms. Eads and Ms. Tang were deductible as alimony

during the years in issue under section 215.

Ms. Eads

Section 2153 provides a deduction for amounts paid by a

taxpayer to a former spouse if the payee spouse is required to

include these amounts in gross income under section 71.4

3
Sec. 215 was amended by the Deficit Reduction Act of 1984
(DEFRA), Pub. L. 98-369, sec. 422(b), 98 Stat. 494, 797. The
amendment applies to divorce or separation instruments (as
defined in sec. 71(b)(2), as amended) executed after Dec. 31,
1984, or executed before Jan. 1, 1985, but modified on or after
that date if the modification expressly provides that the
amendments to sec. 215 apply to the modification. This
amendment is not applicable to petitioner's divorce from Ms.
Eads, and references to sec. 215 are to this section before its
amendment.
4
Sec. 71 was amended by DEFRA sec. 422(a), 98 Stat. 795.
The amendment applies to divorce or separation instruments (as
defined in sec. 71(b)(2), as amended) executed after Dec. 31,
1984, or executed before Jan. 1, 1985, but modified on or after
that date if the modification expressly provides that the
amendments to sec. 71 apply to the modification. This amendment
is not applicable to petitioner's divorce from Ms. Eads, and
references to sec. 71 are to this section before its amendment.
 - 8 -

Section 71(a)(1)5 provides for inclusion in the payee

spouse's gross income of periodic payments received by that

spouse pursuant to a decree of divorce or separate maintenance in

discharge of a legal obligation imposed on or incurred by the

payor spouse under the decree or under a written instrument

incident to the divorce or separation. Child support payments

are generally not includable in the payee spouse's income and are

not deductible by the payor spouse. When the decree, instrument,

or agreement incident to the divorce covers both alimony payments

to the payee spouse and child support payments, those periodic

payments are deductible by the payor spouse, and taxable to the

payee spouse, unless the terms of the decree, instrument, or

agreement fix an amount for the support of the minor children of

the former spouses. See sec. 71(b);6 Commissioner v. Lester, 366

5
SEC. 71. ALIMONY AND SEPARATE MAINTENANCE PAYMENTS.

(a) General Rule.--

(1) Decree of Divorce or Separate Maintenance.–If a
wife is divorced or legally separated from her husband under
a decree of divorce or of separate maintenance, the wife's
gross income includes periodic payments (whether or not made
at regular intervals) received after such decree in
discharge of (or attributable to property transferred, in
trust or otherwise, in discharge of) a legal obligation
which, because of the marital or family relationship, is
imposed on or incurred by the husband under the decree or
under a written instrument incident to such divorce or
separation.
6
SEC. 71. ALIMONY AND SEPARATE MAINTENANCE PAYMENTS.

(continued...)
 - 9 -

U.S. 299 (1961). The amount of child support must be fixed "in

terms of an amount of money or a part of the payment" in order

for it to be excludable from the payee spouse's income and

nondeductible by the payor spouse. Sec. 71(b). The statutory

requirement is strict and carefully worded.

In Commissioner v. Lester, supra, the Supreme Court held

that periodic payments made by a husband to his divorced wife

pursuant to a written agreement entered into by them and approved

by the divorce court were deductible by the husband, as alimony,

and includable in the wife's gross income where an amount or

portion of the periodic payments was not specifically earmarked

as payable for the support of the children.7

6
(...continued)

(b) Payments to Support Minor Children.-–Subsection (a)
shall not apply to that part of any payment which the terms
of the decree, instrument, or agreement fix, in terms of an
amount of money or a part of the payment, as a sum which is
payable for the support of minor children of the husband.
For purposes of the preceding sentence, if any payment is
less than the amount specified in the decree, instrument, or
agreement, then so much of such payment as does not exceed
the sum payable for support shall be considered a payment
for such support.
7
For divorce or separation agreements executed after Dec.
31, 1984, Congress overruled Commissioner v. Lester, 366 U.S. 299
(1961), in that the amount by which support is reduced upon
contingencies involving a child is treated as "fixed" as child
support. See sec. 71(c), as amended by DEFRA sec. 422(a). The
aforesaid is also true with respect to divorce or separation
instruments (as defined in sec. 71(b)(2), as amended) executed
before Jan. 1, 1985, but modified on or after that date if the
modification expressly provides that the amendments to sec. 71
(continued...)
 - 10 -

In this case, the divorce judgment related to petitioner's

divorce from Ms. Eads provides for unallocated payments of

"family support" from petitioner to Ms. Eads. In Wisconsin an

award of "family support" includes both child support and

maintenance (i.e., alimony). See Wis. Stat. sec. 767.261 (1999).

The divorce judgment did not designate how much of the "family

support" award was for maintenance and how much was for child

support. The divorce judgment contains no provision reducing the

"family support" payments if a contingency related to the

children occurs. Finally, the divorce judgment specifically

states that the "family support" payments are "taxable" to Ms.

Eads and "tax deductible" by petitioner on "their respective

federal and state income tax returns." Accordingly, under Lester

v. Commissioner, supra, Ms. Eads was required to include

petitioner's payments in her gross income during the years at

issue, and petitioner is entitled to a deduction for those

payments under section 215.

Ms. Tang

Section 2158 provides for a deduction for an amount paid by

a taxpayer to a former spouse if the former spouse is required to

7
(...continued)
apply to that modification.
8
Since petitioner and Ms. Tang divorced in May 1989, we must
apply secs. 71 and 215 as amended by DEFRA sec. 422(a) and (b),
respectively.
 - 11 -

include these amounts in gross income under section 71.

Therefore, to demonstrate that a cash payment is deductible under

section 215, a taxpayer must prove, inter alia, that the payment

was made pursuant to a written divorce or separation instrument

that did not designate the payment as not includable in the payee

spouse's gross income under section 71. See sec. 71(b)(1)(A) and

(B).

Petitioner was required to pay Ms. Tang $400 per month as

"family support". Although we would ordinarily review the

divorce instruments and other documents to determine whether the

payments made by petitioner to Ms. Tang were alimony, petitioner

did not provide us with divorce instruments or other documents,

such as Ms. Tang's Federal income tax returns during the years in

issue, to prove that Ms. Tang was required to include the "family

support" payments as income pursuant to section 71. In addition,

petitioner did not call Ms. Tang to testify. Accordingly,

petitioner is not allowed a deduction for the "family support"

payments to Ms. Tang.

Issue 2. Whether Petitioner May Deduct Various Schedule C
Expenses

Petitioner claims the following expenses related to his

consulting business as Schedule C, Profit and Loss From Business,

deductions:
 - 12 -

1992 1993 1994 1995

Home office expense:
Rent $1,080 $1,080 $1,305 –-
Utilities 297 315 333 –-
Telephone –- –- 100 $720
Office supplies 200 400 1,120 100
Car and truck expense 3,500 4,002 2,850 2,108
Travel 120 180 –- –-
Meals and entertainment 640 960 425 300

Home Office Expenses

Section 162(a) allows a deduction for ordinary and necessary

business expenses paid or incurred during the taxable year in

carrying on a trade or business. Section 280A generally

prohibits the deduction of otherwise allowable expenses with

respect to the use of an individual taxpayer’s home. Section

280A(c)(1) provides a narrow exception to the disallowance of

home office deductions where a taxpayer can establish that a

portion of the home is used exclusively on a regular basis as:

(1) The taxpayer’s principal place of business,9 or (2) a place

of business which is used by clients or customers in meeting or

dealing with the taxpayer in the normal course of business.

9
For home office expenses incurred in taxable years after
Dec. 31, 1998, Congress overruled Commissioner v. Soliman, 506
U.S. 168 (1993), in that the term "principal place of business"
now includes a place of business used by the taxpayer to perform
administrative or management activities related to the taxpayer's
trade or business if there is no other fixed location of the
taxpayer's trade or business where substantial administrative or
management activities are undertaken. See sec. 280A(c), as
amended by the Taxpayer Relief Act of 1997, Pub. L. 105-34, sec.
932(a), 111 Stat. 788, 881.
 - 13 -

We conclude that petitioner did not meet his burden of proof

with respect to his home office deductions. Petitioner operated

his consulting business out of a garage attached to his

residence. Where a taxpayer's business is conducted in part in

the taxpayer's residence and in part at another location, the

following two primary factors are considered in determining

whether the home office qualifies under section 280A(c)(1)(A) as

the taxpayer's principal place of business: (1) The relative

importance of the functions or activities performed at each

business location, and (2) the amount of time spent at each

location. See Commissioner v. Soliman, 506 U.S. 168, 175-177

(1993).

Whether the functions or activities performed at the home

office are necessary to the business is relevant but not

controlling, and the location at which goods and services are

delivered to customers generally will be regarded as an important

indicator of the principal place of a taxpayer's business, which

must be given great weight and is a principal consideration in

most cases. See id. at 175, 176. The relative importance of

business activities engaged in at the home office may be

substantially outweighed by business activities engaged in at

another location. The Supreme Court has explained:

If the nature of the business requires that its
services are rendered or its goods are delivered at a
facility with unique or special characteristics, this
is a further and weighty consideration in finding that
 - 14 -

it is the delivery point or facility, not the
taxpayer's residence, where the most important
functions of the business are undertaken. [Id. at
176.]

In this case, petitioner provided no evidence as to how many

hours he worked at home compared to hours he visited clients'

business sites. Although he presumably kept records, made

telephone calls, and perhaps did some drafting at his home

office, this evidence is insufficient to allow us to determine

whether petitioner performed most or the most important of his

consulting services in his attached garage or at his clients'

business sites. Accordingly, in the absence of proving that his

residence was his "principal place of business", petitioner is

not entitled to deductions for the home office expenses.

Automobile Expenses

For each year in issue, petitioner claims expenses for

mileage associated with driving his automobile from his residence

to various client locations while pursuing his consulting

business. Respondent disallowed all of petitioner's claimed

expenses.

It is well settled that, as a general rule, the expenses of

traveling between one's home and his place of business or

employment constitute commuting expenses which are nondeductible,

personal expenses. See sec. 262; Fausner v. Commissioner, 413

U.S. 838 (1973); Commissioner v. Flowers, 326 U.S. 465 (1946);
 - 15 -

Feistman v. Commissioner, 63 T.C. 129 (1974); Sullivan v.

Commissioner, 1 B.T.A. 93 (1924).

This Court has previously held that a taxpayer's cost of

transportation between his residence and local job sites may be

deductible if his residence serves as his "principal place of

business" and the travel is in the nature of normal and

deductible business travel. See Wisconsin Psychiatric Servs.,

Ltd. v. Commissioner, 76 T.C. 839, 849 (1981); Curphey v.

Commissioner, 73 T.C. 766, 777-778 (1980); Heuer v. Commissioner,

32 T.C. 947, 953 (1959), affd. per curiam 283 F.2d 865 (5th Cir.

1960).

In Walker v. Commissioner, 101 T.C. 537 (1993), where the

taxpayer's residence was considered his "regular" place of

business rather than his "principal" place of business, the

taxpayer was allowed to deduct transportation expenses incurred

between his residence and local, temporary job sites. However,

as we stated in Strohmaier v. Commissioner, 113 T.C. 106, 114

(1999):

the conclusion in Walker was based on a concession of
the issue by the Commissioner based on Rev. Rul 90-23,
1990-1 C.B. 28. This revenue ruling has subsequently
been amended to reflect existing case law as
articulated above. See Rev. Rul. 94-47, 1994-2 C.B.
18.

Accordingly, to be entitled to deduct automobile expenses,

petitioner must prove that his residence was used as his

"principal place of business". Since petitioner was unable to do
 - 16 -

so, it follows that the mileage expenses for each year are

nondeductible commuting expenses.

Travel, Meals, and Entertainment

For 1992 and 1993, petitioner claims $120 and $180,

respectively, for travel expenses, and $640 and $960,

respectively, for meals and entertainment expenses. For 1994 and

1995, petitioner claims $425 and $300, respectively, for meals

and entertainment expenses. Respondent disallowed all of

petitioner's claimed expenses.

A taxpayer is required under section 274(d) to substantiate

travel, meals, and entertainment expenses by either adequate

records or sufficient evidence corroborating the taxpayer's own

statement as to: (1) The amount of the expense, (2) the time and

place the expense was incurred, (3) the business purpose of the

expense, and (4) the business relationship to the taxpayer of

each expense incurred. In the absence of evidence meeting these

strict substantiation requirements, deductions for travel, meals,

and entertainment expenses are not allowed. See Whalley v.

Commissioner, T.C. Memo. 1996-533; sec. 1.274-5T(b)(4), Temporary

Income Tax Regs., 50 Fed. Reg. 46015 (Nov. 6, 1985).

Other than his oral testimony, petitioner did not provide

substantiation of his expenses for travel, meals, and

entertainment. Accordingly, petitioner has failed to meet the
 - 17 -

requirements of section 274(d), and we, therefore, sustain

respondent’s determination for the taxable years in issue.

Issue 3. Whether Petitioner Is Entitled To Claim Additional
Exemptions for His Spouse and Her Two Daughters for Taxable Years
1993 Through 1995

1993

In 1993, petitioner was engaged to be married to the woman

who would become his wife in May 1994. Because of the support he

purportedly provided to his fiancee and her two daughters,

petitioner claims that he is entitled to additional dependency

exemptions in 1993. Respondent did not allow additional

dependency exemptions for petitioner's fiancee and her daughters.

Section 151(c) allows a taxpayer, subject to certain

requirements, a deduction for a personal exemption for each of

the taxpayer’s dependents as defined in section 152. A dependent

is defined as an individual over half of whose total support is

received from the taxpayer, and who must either be related to the

taxpayer in one of the ways enumerated in section 152(a)(1)

through (8) or be a member of the taxpayer’s household within the

meaning of section 152(a)(9). See sec. 152(a).

In 1993, petitioner was not related to his fiancee or her

two daughters by blood or marriage, nor was he their adoptive or

foster father. Accordingly, to claim his fiancee and her

daughters as dependents in 1993, petitioner must establish, inter
 - 18 -

alia, that these individuals were members of petitioner’s

household within the meaning of section 152(a)(9).

Section 1.152-1(b), Income Tax Regs., provides that section

152(a)(9) applies to any individual who lived with the taxpayer

and was a member of the taxpayer’s household during the entire

taxable year of the taxpayer. Petitioner offered no evidence

that his fiancee and her daughters were members of his household

or that their principal place of abode was his home throughout

1993. Accordingly, petitioner is not entitled to claim his

fiancee and her daughters as dependents in 1993.

1994 and 1995

Petitioner married his fiancee in May 1994 and was married

to her at the end of taxable years 1994 and 1995. For 1994 and

1995, petitioner claims an exemption for his spouse, as well as

additional exemptions for both of his stepdaughters. Respondent

denied the exemptions.

Section 151(b) provides that a taxpayer may take an

exemption for a spouse if the taxpayer and his spouse did not

file a joint return, the spouse had no gross income for the tax

year in question, and the spouse was not a dependent of any other

person. Petitioner and his wife did not file joint returns for

taxable years 1994 and 1995. However, the record does not show

whether petitioner's spouse had any gross income for either 1994

or 1995 or whether any other person could claim her as a
 - 19 -

dependent for either year. We therefore sustain respondent’s

determination that petitioner is not entitled to an additional

exemption for his spouse for taxable years 1994 and 1995.

To claim additional exemptions for his stepdaughters,

petitioner must prove that he provided more than one-half of

their total support in 1994 and 1995. See sec. 152(a)(2). In

applying the support test, we evaluate the amount of support

furnished by the taxpayer as compared to the total amount of

support received by the claimed dependent from all sources. See

Turecamo v. Commissioner, 554 F.2d 564, 569 (2d Cir. 1977), affg.

64 T.C. 720 (1975); sec. 1.152-1(a)(2)(i), Income Tax Regs. In

other words, in order to establish that the taxpayer provided

more than one-half of the claimed dependent’s support, the

taxpayer must first show, by competent evidence, the total amount

of support received by the claimed dependent from all sources

during the year in issue. Otherwise, the taxpayer cannot be said

to have established that he or she provided more than one-half of

the support for the claimed dependent. See, e.g., Blanco v.

Commissioner, 56 T.C. 512, 514-515 (1971); Seraydar v.

Commissioner, 50 T.C. 756, 760 (1968); Stafford v. Commissioner,

46 T.C. 515, 518 (1966).

Petitioner presented no evidence that he provided more than

one-half of the support for his stepdaughters during taxable

years 1994 and 1995. Accordingly, petitioner's claim to
 - 20 -

additional dependency exemptions for his stepdaughters for

taxable years 1994 and 1995 is denied.

Issue 4. Whether Petitioner Is Entitled to Head of Household
Filing Status in 1993 and Married Filing Joint Return Filing
Status in 1994 and 1995

1993

Petitioner claimed at trial that he was entitled to head-of-

household filing status in 1993. Respondent contends that

petitioner's filing status in 1993 was "single".

In order to qualify for head-of-household filing status,

petitioner must satisfy the requirements of section 2(b).

Pursuant to that section, and as relevant herein, an individual

qualifies as a head of household if the individual is not married

at the close of the taxable year and maintains as his home a

household that constitutes for more than one-half of the taxable

year the principal place of abode of an individual who qualifies

as the taxpayer’s dependent within the meaning of section 151.

See sec. 2(b)(1)(A)(ii). However, a taxpayer is not considered

to be a head of household by reason of an individual who would

not be a dependent for the taxable year but for section 152(a)(9)

(i.e., an individual not related by blood or marriage who is a

member of the taxpayer's household). See sec. 2(b)(3)(B)(i).

Since petitioner is not entitled to dependency exemptions

for his fiancee and her two daughters during 1993, he does not

qualify as a head of household. Even if petitioner were entitled
 - 21 -

to the dependency exemptions under section 152(a)(9), he would

still not qualify, as a matter of law, as a head of household

because of the limitation set forth in section 2(b)(3)(B)(i).

Accordingly, petitioner is not entitled to head-of-household

filing status but rather must use "single" filing status for

taxable year 1993.

1994 and 1995

For taxable years 1994 and 1995, petitioner claims that he

is entitled to married filing joint return status. In the notice

of deficiency, respondent determined that petitioner's filing

status was "married filing separately".

Section 1(a) provides that the filing status married filing

joint return applies only to "every married individual * * * who

makes a single return jointly with his spouse under section

6013". From this language, it is clear that married taxpayers

who fail to file returns are not entitled to married filing joint

return tax rates. See Martinez v. Commissioner, T.C. Memo. 1998-

199, affd. 198 F.3d 242 (5th Cir. 1999); Collins v. Commissioner,

T.C. Memo. 1994-409; Ebert v. Commissioner, T.C. Memo. 1991-629,

affd. without published opinion 986 F.2d 1427 (10th Cir. 1993);

Hess v. Commissioner, T.C. Memo. 1989-167; see also Phillips v.

Commissioner, 86 T.C. 433, 441 n.7 (1986), affd. in part and

revd. in part on another ground 851 F.2d 1492 (D.C. Cir. 1988).

The parties stipulated that petitioner failed to file returns
 - 22 -

during the years in issue. Moreover, petitioner testified that

his wife has not indicated any desire to file a joint return with

him. We therefore sustain respondent’s determination that

petitioner’s filing status is "married filing separately" for

taxable years 1994 and 1995.

Issue 5. Failure To Timely File Tax Return

Petitioner admits he did not file tax returns for any of the

years in issue and that he has income tax liability. Section

6651(a) imposes an addition to tax for failure to timely file a

return, unless the taxpayer establishes: (1) The failure did not

result from willful neglect; and (2) the failure was due to

reasonable cause. See United States v. Boyle, 469 U.S. 241, 245-

246 (1985). Petitioner bears the burden of proof on this issue.

See Rule 142(a); Baldwin v. Commissioner, 84 T.C. 859, 870

(1985). Petitioner failed to prove reasonable cause for his

failure to file.

Respondent's computation of the addition to tax in the

notice of deficiency does take into consideration petitioner’s

withholding tax credits, as is required by section 6651(b)(1).

See sec. 301.6651-1(d)(1), Proced. & Admin. Regs. Accordingly,

the addition to tax for failure to file returns under section

6651(a), as it will be modified in a Rule 155 computation, is

sustained.
 - 23 -

Issue 6. Failure To Pay Estimated Income Tax

Respondent determined that petitioner was liable for the

addition to tax under section 6654(a) for failure to pay

estimated tax for the years in issue. Where payments of tax,

either through withholding or by making estimated quarterly tax

payments during the course of the year, do not equal the

percentage of total liability required under the statute,

imposition of the addition to tax under section 6654(a) is

automatic, unless petitioner shows that one of the statutory

exceptions applies. See Niedringhaus v. Commissioner, 99 T.C.

202, 222 (1992); Habersham-Bey v. Commissioner, 78 T.C. 304, 319-

320 (1982); Grosshandler v. Commissioner, 75 T.C. 1, 20-21

(1980). None of the exceptions applies. We therefore sustain

respondent on this issue.

Decision will be entered

under Rule 155.