Butler v. Commissioner

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.