T.C. Memo. 2003-104



                       UNITED STATES TAX COURT



                  ERYCK C. ASTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2427-01.               Filed April 16, 2003.


     Eryck C. Aston, pro se.

     Joan E. Steele, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined a deficiency of

$2,104 and additions to tax of $73.64 and $101.85 pursuant to

sections 6651(a)(1)1 and 6654(a) in petitioner’s 1999 Federal

income tax.


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 2 -

     The issues for decision are:   (1) Whether petitioner had a

deficiency for 1999, as determined by respondent; (2) whether

petitioner is liable for an addition to tax for failing to file a

Federal income tax return for 1999; (3) whether petitioner is

liable for an addition to tax for failing to make estimated tax

payments for 1999; and (4) whether petitioner engaged in behavior

warranting the imposition of a penalty pursuant to section

6673(a).

                         FINDINGS OF FACT

     None of the facts have been stipulated.   At the time he

filed his petition, petitioner resided in Billings, Montana.

     During 1999, petitioner was employed by the Kmart Corp.

(Kmart) in Billings, Montana.   In 1999, Kmart paid petitioner

$21,078.12 in wage income.   During 1999, Kmart withheld zero

Federal income tax, $1,306.84 of Social Security tax, and $305.63

of Medicare tax.   Petitioner made no estimated income tax

payments for 1999.

     Petitioner submitted an unsigned Form 1040A, U.S. Individual

Income Tax Return, for 1999 to respondent.   Petitioner listed

zero as the amount of his wages, total income, adjusted gross

income, taxable income, and total tax.   On the line for

nontaxable income earned petitioner listed “ALL”.   Petitioner

claimed a refund of $1,926.12 for amounts withheld for Federal

income tax ($1,612.47) and estimated tax payments ($313.65).
                                - 3 -

Both pages of the Form 1040A were stamped “under duress” and

“without prejudice”.   Petitioner attached 30 pages to the Form

1040A reciting statements, contentions, and arguments that the

Court finds to be frivolous and/or groundless.

                               OPINION

I.   The Deficiency

     As a general rule, the taxpayer bears the burden of proving

the Commissioner’s deficiency determinations incorrect.    Rule

142(a); Welch v. Helvering, 

, 115 (1933).     Section

7491(a), however, provides that if a taxpayer introduces credible

evidence and meets certain other prerequisites, the Commissioner

shall bear the burden of proof with respect to factual issues

relating to the liability of the taxpayer for a tax imposed under

subtitle A or B of the Code.

     We found petitioner’s testimony to be evasive, vague,

conclusory, and/or questionable.   Petitioner introduced no

credible evidence regarding his income for 1999, and he

introduced no evidence to establish that he met the prerequisites

of section 7491(a).2   Accordingly, petitioner bears the burden of



     2
        The documentary evidence the Court received from
petitioner at trial consisted of: (1) A letter from respondent
to petitioner regarding respondent’s making third party contacts,
(2) documents regarding the seizure of property from petitioner,
(3) documents regarding the alleged theft of property from
petitioner by his ex-wife, and (4) a 12-page letter from
petitioner to respondent containing numerous frivolous and
groundless arguments regarding why he was not subject to Federal
income tax.
                                  - 4 -

proof.3

     A.     Income From Kmart

     Section 61 defines gross income as all income from whatever

source derived.      Gross income includes compensation for services.

Sec. 61(a)(1).

     In 1999, petitioner received $21,078.12 in wages from Kmart.

In motions, at trial, and on brief, petitioner advanced shopworn

arguments characteristic of tax protester rhetoric that has been

universally rejected by this and other courts.      Wilcox v.

Commissioner, 

(9th Cir. 1988), affg. T.C. Memo.

1987-225; Carter v. Commissioner, 

, 1009 (9th Cir.

1986).    We shall not painstakingly address petitioner’s

assertions “with somber reasoning and copious citation of

precedent; to do so might suggest that these arguments have some

colorable merit.”      Crain v. Commissioner, 

, 1417

(5th Cir. 1984).

     B.     Losses

     Section 165(a) provides that there shall be allowed as a

deduction any loss sustained during the taxable year and not

compensated by insurance or otherwise.     Section 165(c) limits the

loss deduction for individuals to losses incurred in a trade or

business, losses incurred in a transaction entered into for

profit, and certain casualty losses.      Petitioner argues that he


     3
        We note, however, that our resolution of this issue does
not depend on which party bears the burden of proof.
                              - 5 -

is entitled to a loss deduction for 1999 related to (1) property

seized by the Government, and (2) theft of his property by his

ex-wife, Lonnie Probst.4

     In 1992, the Department of the Treasury, Bureau of Alcohol,

Tobacco and Firearms (ATF), seized 17 firearms, assorted

ammunition, and destructive devices (firearms) from petitioner.

The firearms seized by ATF were used or acquired by petitioner in

violation of chapter 53 of the Internal Revenue Code and subject

to forfeiture pursuant to that law.5

     On December 7, 1999, ATF sent petitioner a letter notifying

him that administrative forfeiture proceedings regarding the

firearms had “commenced in accordance with the provisions of 31

U.S.C. 9703(o) and 19 U.S.C. 1602-1624.”   ATF informed petitioner

that he could contest the forfeiture of the firearms by filing a

claim for the seized property and a cost bond or a request for a

waiver of the cost bond by December 30, 1999.

     On January 31, 2000, ATF sent petitioner a letter

acknowledging that on December 28, 1999, petitioner filed a claim

and a request for waiver of the cost bond to contest the

forfeiture of the firearms and informing petitioner that the

matter was referred to the U.S. Attorney’s Office for the



     4
        Petitioner did not claim these losses on his unsigned
Form 1040A for 1999 that he submitted to respondent.
     5
        Petitioner testified that he was imprisoned from 1994
through 1998 for “Department of Treasury tax violations”.
                               - 6 -

District of Utah.

     Petitioner testified that Ms. Probst stole jewelry,

automobiles, and other property from petitioner.   A letter and a

memorandum dated February 18, 1999, from Dennis Paxinos, a

Yellowstone County attorney, stated that Mr. Paxinos had reviewed

the two volumes of materials petitioner had sent to him and that

he (Mr. Paxinos) could not in good faith file a criminal

complaint for theft against Ms. Probst.   Mr. Paxinos stated that

petitioner’s allegations that Ms. Probst and others had stolen

property from petitioner were previously reviewed in 1996, and

based on his review of the current file Mr. Paxinos concluded

that Ms. Probst had the authority to take the allegedly stolen

property and had a claim of right, title, or ownership on the

allegedly stolen property.

     The Court is not required to accept petitioner’s

unsubstantiated testimony.   Wood v. Commissioner, 

,

605 (9th Cir. 1964), affg. 

(1964).   As previously

stated, we found petitioner’s testimony to be vague, conclusory,

and/or questionable.   Under the circumstances presented here, we

are not required to, and generally do not, rely on petitioner’s

testimony to sustain his burden of proof.   Lerch v. Commissioner,

, 631-632 (7th Cir. 1989), affg. T.C. Memo. 1987-295;

Geiger v. Commissioner, 

, 689-690 (9th Cir. 1971),

affg. per curiam T.C. Memo. 1969-159; Tokarski v. Commissioner,
                               - 7 -

, 77 (1986).

      Even if we were to accept petitioner’s testimony, the

evidence does not establish that any of the alleged losses (from

the seizure of the firearms or the alleged theft of property)

occurred in 1999.

      C.   Conclusion

      Based on the foregoing, we sustain respondent’s deficiency

determination.

II.   Additions to Tax

      Section 7491(c) provides that the Commissioner shall bear

the burden of production with respect to the liability of any

individual for additions to tax.   “The Commissioner’s burden of

production under section 7491(c) is to produce evidence that it

is appropriate to impose the relevant penalty”.    Swain v.

Commissioner, 

, 363 (2002); see also Higbee v.

Commissioner, 

, 446 (2001).    If a taxpayer files a

petition alleging some error in the determination of the penalty,

the taxpayer’s challenge generally will succeed unless the

Commissioner produces evidence that the penalty is appropriate.

Swain v. Commissioner, supra at 364-365.    The Commissioner,

however, does not have the obligation to introduce evidence

regarding reasonable cause or substantial authority.    Higbee v.

Commissioner, supra at 446-447.
                                 - 8 -

     A.     Section 6651(a)(1)

     Respondent determined that petitioner is liable for an

addition to tax pursuant to section 6651(a)(1).    Section

6651(a)(1) imposes an addition to tax for failure to file a

return on the date prescribed (determined with regard to any

extension of time for filing), unless such failure is due to

reasonable cause and not due to willful neglect.

     Respondent introduced as evidence the Form 1040A for 1999

that petitioner submitted to respondent.6   This return was not

signed.    Such unsigned tax return submitted to the Commissioner

is insufficient to avoid the addition to tax pursuant to section

6651(a)(1).    Vaira v. Commissioner, 

, 1004-1006

(1969), revd. on other grounds 

(3d Cir. 1971); see

also Dixon v. Commissioner, 

, 347-348 (1957) (the

submission of an unsigned tax return to the Internal Revenue

Service is not the making of an income tax return).    We conclude

that respondent satisfied his burden of production regarding this

issue.    Thus, petitioner must come forward with evidence



     6
        Petitioner testified that the first name on the Form
1040A is spelled “Ercyk” whereas petitioner’s first name is
spelled “Eryck”; however, he did not testify that the Form 1040A
was not his. This appears to be no more than a typographical
error given that petitioner’s name, correctly spelled, and
signature appears on documents attached to the Form 1040A and
petitioner testified that his Social Security number is listed on
the Form 1040A.
                                  - 9 -

sufficient to persuade the Court that respondent’s determination

is incorrect or that an exception applies.      Rule 142(a); Welch v.

; see Higbee v. Commissioner, supra at

447.

       Petitioner presented no evidence that he timely filed a

return for 1999 or that his failure to file was due to reasonable

cause and not due to willful neglect.      We hold that petitioner is

liable for the addition to tax pursuant to section 6651(a)(1).

       B.     Section 6654(a)

       Section 6654 imposes an addition to tax for failure to pay

estimated income tax.      Respondent submitted petitioner’s Form W-

2, Wage and Tax Statement, for 1999 from Kmart and a Form 4340,

Certificate of Assessments, Payments, and Other Specified

Matters, for petitioner’s 1999 tax year.      The forms indicate that

petitioner did not have any Federal income tax withheld and did

not make any estimated income tax payments for 1999.      We conclude

that respondent satisfied his burden of production regarding this

issue.      Thus, petitioner must come forward with evidence

sufficient to persuade the Court that respondent’s determination

is incorrect or that an exception applies.      Rule 142(a); Welch v.

Helvering, supra at 115; see Higbee v. Commissioner, supra at

447.

       Petitioner presented no evidence that he had any income tax

withheld, paid any estimated income taxes for 1999, or that an
                             - 10 -

exception pursuant to section 6654(e) applies.    We hold that

petitioner is liable for the addition to tax pursuant to section

6654(a).

III. Section 6673 Penalty

     Section 6673(a)(1) authorizes this Court to require a

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous positions in the

proceedings or instituted the proceedings primarily for delay.     A

position maintained by the taxpayer is “frivolous” where it is

“contrary to established law and unsupported by a reasoned,

colorable argument for change in the law.”     Coleman v.

Commissioner, 

, 71 (7th Cir. 1986).

     At trial, the Court advised petitioner that the arguments he

was advancing were frivolous and groundless.    Furthermore, the

Court directed petitioner to several opinions of the U.S. Court

of Appeals for the Ninth Circuit, the court to which this case is

appealable, holding petitioner’s arguments to be frivolous and

groundless.7

     Petitioner filed numerous frivolous documents and motions

with the Court before and after the trial.   Petitioner’s

position, based on stale and meritless contentions, is manifestly



     7
        The Court apprised petitioner of the following cases:
Schramm v. Commissioner, 

(9th Cir. 1993), affg. T.C.
Memo. 1991-523; United States v. Ferrel, 

(9th Cir.
1991); and Wilcox v. Commissioner, 

(9th Cir. 1988),
affg. T.C. Memo. 1987-225.
                              - 11 -

frivolous and groundless, and he has wasted the time and

resources of this Court.   Accordingly, we shall impose a penalty

of $2,500 pursuant to section 6673.

     To reflect the foregoing,

                                              Decision will be

                                         entered for respondent.