T.C. Memo. 2005-84
UNITED STATES TAX COURT
HARRY E. MATHEWS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2515-04. Filed April 12, 2005.
Harry E. Mathews, pro se.
Daniel N. Price, for respondent.
MEMORANDUM OPINION
WHALEN, Judge: Petitioner did not file an income
tax return for 2000 or 2001. In separate notices of
deficiency, respondent determined the following
deficiencies and additions in petitioner’s tax for
those years:
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Additions to Tax
Sec. Sec.
Year Tax Sec. 6651(a)(1) 6651(a)(2)1 6654(a)
1
2000 $2,161.10 $484.22 $312.05 $116.23
1
2001 3,557.40 790.52 298.64 140.77
1
Respondent concedes that no return was prepared by the
Secretary, pursuant to sec. 6020(b), and that petitioner is not
liable for the addition to tax under sec. 6651(a)(2). See sec.
6651(g).
All section references in this opinion are to the Internal
Revenue Code.
Petitioner filed an imperfect petition ostensibly
seeking redetermination of those deficiencies.
Petitioner’s imperfect petition states as follows:
I have filed a petition each year for the
past 18 years. All you ever do is steal my fil-
ing fee. Even when it was $15.00. I have never
been given a Court date. You have no intentions
of ever giving me a Court date because you do not
want to deal with this matter. One day it will
be on National news and all of America will know
how you have done me.
The Court issued an order stating that petitioner’s
imperfect petition did not comply with the Rules of the
Court as to the form and content and noting that the filing
fee had not been paid. The Court ordered petitioner to
file a proper amended petition and to pay the filing fee
on or before a certain date. Petitioner filed an amended
petition but did not pay the filing fee. For cause, the
Court waived the filing fee in this case.
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The following are the reasons set forth in the amended
petition why petitioner believes he is entitled to relief:
Since 1976 I have been the victim of an eleborate
[sic] fraud. Each and every year I have tried to
get the IRS and or Tax Court to address and
fairly assess what I have been telling them.
They have chose [sic] to to [sic] lie and cover-
up this criminal conduct. It has been easier to
ignore me than allow the truth to be known.
At the outset, we note that the Court is unable to
verify the statement in petitioner’s imperfect petition
that petitioner has “filed a petition each year for the
past 18 years.” Similarly, the Court cannot verify the
statement in petitioner’s amended petition that “Since
1976 * * * [in] Each and every year I have tried to get
the IRS and or Tax Court to address and fairly assess
what I have been telling them.”
The records of this Court show that, in addition
to the instant petition, petitioner has filed two other
petitions; viz docket Nos. 18366-90 and 5762-02L. In
the case of the petition at docket No. 18366-90, the
Commissioner filed a motion to dismiss for lack of
jurisdiction. The Court issued a notice of filing of
the Commissioner’s motion and directed petitioner to
file an objection by a date certain. Petitioner filed
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no objection and, as a result, the Court granted the
Commissioner’s motion to dismiss.
In the case of the petition at docket No. 5762-02L,
the Court entered an order directing petitioner to file
a proper “amended petition for lien or levy action under
Code section 6320(c) or 6330(d)” and to pay the filing fee.
Petitioner paid the filing fee, but he never filed an
amended petition. The Court extended the time for filing
the amended petition in four subsequent orders and finally
dismissed the case for lack of jurisdiction when it
received no amended petition.
The instant case is presently before the Court to
decide respondent’s motion for summary judgment. In that
motion, as mentioned above, respondent concedes that
petitioner is not liable for the addition to tax under
section 6651(a)(2) for failure to pay the tax shown on a
return because petitioner did not file a return for 2000
or 2001 and respondent did not prepare a return for
petitioner pursuant to section 6020(b). Accordingly,
respondent’s motion is deemed to be a motion for partial
summary judgment.
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Respondent’s motion points out that “petitioner’s sole
issue set forth in his Amended Petition is that he has
‘been the victim of an eleborate [sic] fraud’”, a theory
that, respondent asserts, “has no bearing on the tax
deficiencies set forth in the notice of deficiency for
tax years 2000 and 2001.” Respondent’s motion details
petitioner’s fraud theory, which involves petitioner’s
divorce and a Florida State court order under which
petitioner’s wages were garnished to pay child support
for a child who petitioner claims does not exist.
Respondent’s motion also details the factual basis for
finding that petitioner had earned the income underlying
the taxes and additions to tax determined in the subject
notices of deficiency. Respondent’s motion states that
during the years in issue petitioner received income from
three sources: (1) Wages from the City of Austin, Texas,
for work as a crossing guard; (2) distributions of
retirement pay from the Defense Finance and Accounting
Service attributable to his retirement from the U.S. Air
Force; and (3) a distribution from the Prudential Insurance
Co. of America (herein Prudential) attributable to the
cancellation of a life insurance contract for failure to
pay a policy loan. Petitioner’s income from these sources
is summarized as follows:
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Year Payor Amount
2000 City of Austin, Texas $1,408
Defense Fin. and Acctg. Service 12,121
13,529
2001 City of Austin, Texas 1,540
Defense Fin. and Acctg. Service 12,551
Prudential Ins. Co. 5,213
19,304
Respondent’s motion for summary judgment is supported
by the declaration of Daniel N. Price, respondent’s trial
attorney, and the exhibits attached thereto. The attached
exhibits include a copy of a letter from the payroll
manager for the City of Austin, Texas, who transmitted to
the Internal Revenue Service copies of the Forms W-2, Wage
and Tax Statement, that had been issued to petitioner for
2000 and 2001, showing that petitioner had been paid wages
of $1,408.75 and $1,540, respectively, as well as other
documents relating to petitioner’s employment by the City
of Austin, Texas. The exhibits also include a letter from
a representative of the Retired Pay Department of the
Defense Finance and Accounting Service, who transmitted to
the Internal Revenue Service copies of the Forms 1099-R,
Distributions From Pensions, Annuities, Retirement or
Profit-Sharing Plans, IRAs, Insurance Contracts, etc.,
that had been issued to petitioner for 2000 and 2001,
showing that distributions of retirement pay had been made
to petitioner of $12,121.92 and $12,551.88, respectively.
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Finally, the exhibits include copies of a letter from a
representative of Prudential to the Internal Revenue
Service and a Form 1099-R. Those documents state that a
life insurance contract owned by petitioner had lapsed in
2001 and that petitioner had realized $5,213.19 of taxable
gain from the contract.
Petitioner’s response to respondent’s motion for
summary judgment is in the form of a letter addressed not
only to the Chief Judge of the U.S. Tax Court, but also to
“the Honorable Kofi Annan, General Secretary, The United
Nations, The Honorable George W. Bush, President, United
States of America, The Honorable Senators and Congress of
the United States of America, David E. Graham, Chairman
of the Board, the Washington Post Company, Mark W. Everson,
Commissioner, Internal Revenue Service, John Danforth,
United States Ambassador, The United Nations, and Ruth
Bader Ginsburg, Associate Justice, the United States
Supreme Court”.
Attached to petitioner’s letter are a variety of
documents, including copies of court papers from the
garnishment proceedings; correspondence; newspaper
articles; legal materials, such as copies of statutes;
and financial documents, such as copies of checks. These
documents appear to involve petitioner’s attempt to notify
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various organizations, including the General Accounting
Office, Office of the Inspector General of the Department
of the Army, Office of the Governor of the State of
Florida, Office of the Governor of the State of Texas,
the Federal Bureau of Investigation, and others, of the
injustice that he perceives took place when his wages were
garnished to pay child support.
Whatever else might be said of petitioner’s letter
response to respondent’s motion for summary judgment and
the documents attached thereto, we perceive no connection
between them and the deficiencies and additions to tax
determined by respondent in the subject notices of
deficiency. Nowhere in those documents does petitioner
address his tax liabilities for taxable years 2000 and 2001
or present any basis on which to conclude that respondent
erred in the determinations at issue in this case.
Neither petitioner's imperfect petition nor his
amended petition makes a clear and concise assignment of
any error which petitioner alleges was committed by the
Commissioner in the subject determinations of his tax for
2000 or 2001, as required by the Rules of this Court. See
Rule 34(b)(4). All Rule references are to the Tax Court
Rules of Practice and Procedure. Thus, petitioner makes no
justiciable claim in his pleadings. After the pleadings
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had closed by at least 30 days, respondent filed the motion
for summary judgment that is presently before the Court for
decision. In that motion, respondent presents matters
outside the pleadings and asks the Court to grant summary
judgment against petitioner. A motion for summary judgment
is appropriate in these circumstances. See Rules 120(b)
and 121.
Summary judgment is intended to expedite litigation
and avoid unnecessary and expensive trials. See Fla. Peach
Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary
judgment may be granted with respect to all or any part of
the legal issues in controversy "if the pleadings, answers
to interrogatories, depositions, admissions, and any other
acceptable materials, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that a decision may be rendered as a matter of law."
Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518,
520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.
Commissioner, 90 T.C. 753, 754 (1988); Naftel v.
Commissioner, 85 T.C. 527, 529 (1985).
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In this case, petitioner’s response to respondent’s
motion for summary judgment does not deny respondent’s
proof, set forth in the declaration of respondent’s trial
attorney, and the exhibits attached thereto, that
petitioner had received, and is subject to tax on, the
income underlying respondent's determination of the tax
deficiencies and additions to tax for 2000 and 2001.
Petitioner’s response does not address the notices of
deficiency issued to him. Instead, he continues to advance
his position that “the United States Department of Justice,
the United States Department of Defense, the United States
Postal Service and Internal Revenue Service are actively
involved in unprecedented corruptions and criminality” and
other extraneous matters involving the garnishment of his
wages for child support.
By failing to assign any error to the notices of
deficiency, including the additions to tax determined
therein, petitioner is deemed to have conceded the
deficiencies and additions to tax, and respondent is
relieved of the burden of production under section
7491(c) to produce evidence that the additions to tax
determined for 2000 and 2001 are appropriate. See Funk
v. Commissioner, 123 T.C. 213, 217-218 (2004); Swain v.
Commissioner, 118 T.C. 358, 363-365 (2002). Accordingly,
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on the basis of the record of this case, we find that there
is no genuine issue as to any material fact, and that a
decision may be rendered for respondent as a matter of law.
It is necessary to give petitioner a word of warning.
The Court considers petitioner’s position in this case to
be frivolous or groundless. It also appears that he has
instituted or maintained these proceedings primarily for
delay. Section 6673(a) authorizes the Court to require
a taxpayer to pay to the United States a penalty not in
excess of $25,000 whenever it appears to the Court that:
(a) Proceedings before it have been instituted or
maintained by the taxpayer primarily for delay; (b) the
taxpayer’s position in such proceeding is frivolous or
groundless; or (c) the taxpayer unreasonably failed to
pursue available administrative remedies. Sec. 6673(a)(1).
Petitioner is hereby warned that the Court will not
hesitate to impose a penalty under section 6673(a) against
him in any appropriate case in the future.
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Upon consideration of the above, including
respondent’s concession of the addition to tax under
section 6651(a)(2),
An appropriate order and
decision granting respondent's
motion for summary judgment,
deemed to be a motion for
partial summary judgment,
will be entered.