T.C. Memo. 2007-259



                     UNITED STATES TAX COURT



              GLENDA M. WIPPERFURTH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8834-04.               Filed August 29, 2007.



     Glenda M. Wipperfurth, pro se.

     Mark J. Miller, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GALE, Judge: Respondent determined the following

deficiencies in, and additions to, petitioner’s Federal income

taxes:
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                                             Addition to Tax Under
     Year              Deficiency               Sec. 6651(a)(1)
     2001                 $1,759                    $399.75
     2002                 1,511                      369.50

     Unless otherwise noted, all section references are to the

Internal Revenue Code of 1986, as in effect for the years in

issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

     We must decide the following issues: (1) Whether petitioner

had unreported income in 2001 and 2002, as determined by

respondent; (2) whether petitioner is liable for additions to tax

under section 6651(a)(1) for those years; and (3) whether

petitioner is liable for a penalty under section 6673(a)(1).

                          FINDINGS OF FACT

     Certain matters were deemed stipulated for purposes of this

case pursuant to Rule 91(f).   At the time the petition was filed,

petitioner resided in Wisconsin.

     During 2001 and 2002, petitioner worked at a casino operated

by the Oneida Tribe of Wisconsin and received amounts treated as

wages by the Oneida Tribe of $20,317 and $17,259 in 2001 and

2002, respectively.   The Oneida Tribe of Wisconsin issued to

petitioner Forms W-2, Wage and Tax Statement, reporting the

foregoing amounts as wages in the respective years.     In 2001,

petitioner received interest of $10 and a dividend of $90 from

the AAL Member Credit Union.   In 2002, petitioner received a
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payment of $1,734 on account of disability from Metlife Agent.

     Respondent’s records do not reflect the filing of Federal

income tax returns for 2001 and 2002 by petitioner.

     Respondent determined that petitioner had unreported income

in the aforementioned amounts for 2001 and 2002, as well as

additions to tax under section 6651(a)(1) for failing to file

returns for each of those years.

                                OPINION

Unreported Income

     Petitioner’s admissions at trial, the deemed stipulations,

and/or respondent’s evidence establish that petitioner received

the income determined by respondent in 2001 and 2002, as outlined

in our findings of fact.   Her arguments that this income was not

taxable are frivolous tax protester arguments that we need not

“refute * * * 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) (per curiam).    Accordingly, the deficiencies

determined by respondent are sustained.

Section 6651(a)(1) Additions to Tax

     Under section 7491(c), respondent has the burden of

production with respect to petitioner’s liability for the section

6651(a)(1) additions to tax.    In order to meet that burden,

respondent must offer sufficient evidence to indicate that it is
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appropriate to impose the relevant penalty.    Higbee v.

Commissioner, 

, 446 (2001).   Once the Commissioner

meets his burden of production, the taxpayer bears the burden of

proving error in the determination, including evidence of

reasonable cause or other exculpatory factors.    

     Section 6651(a)(1) provides for an addition to tax for a

taxpayer’s failure to file a required return on or before the due

date, including extensions.   Respondent introduced certified

transcripts of account which show no record of Federal income tax

returns filed by petitioner for 2001 and 2002, as well as copies

of Forms W-2 reporting petitioner’s wage income from the Oneida

Tribe of Wisconsin and certified copies of payroll records

documenting petitioner’s employment and compensation at the

Oneida Tribe casino in the relevant years.    This income obligated

petitioner to file Federal income tax returns in each year.      See

sec. 6012.   Accordingly, we conclude that respondent met his

burden of production under section 7491(c).

     Petitioner contends that she filed returns for 2001 and 2002

and offered into evidence what she claimed were copies of the

returns filed.   Even if we accepted petitioner's somewhat dubious

claim of having filed these documents with the intent that they

be accepted as returns,1 neither would qualify as such.    The


     1
       The first page of each purported return is a Form 4868,
Application for Automatic Extension of Time To File U.S.
                                                   (continued...)
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purported return for 2001 is unsigned, and the purported return

for 2002 contains only zeros in the entries for income.    Neither

constitutes a return for purposes of section 6651(a)(1).   See

United States v. Moore, 

, 835 (7th Cir. 1980);

Cabirac v. Commissioner, 

, 168-170 (2003); Thompson

v. Commissioner, 

, 562-563 (1982); Vaira v.

Commissioner, 

, 1004-1005 (1969), revd. on other

grounds 

(3d Cir. 1971).

     We conclude that petitioner did not file returns in 2001 or

2002 for purposes of section 6651(a)(1).   As petitioner has

produced no evidence that she had reasonable cause for her

failure to file, we sustain respondent’s determination that

petitioner is liable for additions to tax under section

6651(a)(1) for 2001 and 2002.

Section 6673 Penalty

     Respondent has moved for a penalty under section 6673(a)(1).

Whenever it appears to the Court that proceedings have been

instituted or maintained primarily for delay or the taxpayer’s

position in such proceedings is frivolous or groundless, the

Court may require the taxpayer to pay a penalty not in excess of

$25,000.   Sec. 6673(a)(1).


     1
      (...continued)
Individual Income Tax Return, followed by a partially filled out
Form 1040, U.S. Individual Income Tax Return. Thus, on its face
each document appears to be a request for an extension rather
than a return.
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      The instant case falls squarely into this category.

Petitioner presented no evidence in support of her position.

Instead, she advanced numerous frivolous tax protester arguments.

Petitioner was warned by the Court, in a pretrial order, that the

arguments she had been advancing were frivolous or groundless and

could cause her to be subject to penalties under section 6673.

Nevertheless, petitioner continued to advance such arguments.

      At trial, petitioner filed a frivolous “Motion to Dismiss

for Lack of Subject Matter Jurisdiction”.   This motion was

essentially identical to a motion filed by her in a previous case

in this Court, at docket No. 11488-03, which was found frivolous

by the Court in that proceeding.   Respondent also moved for a

section 6673 penalty in the case at docket No. 11488-03, although

the Court elected not to impose any penalty.   Petitioner’s

persistence in filing the same motion in the instant case

evidenced bad faith.   In addition, petitioner issued a subpoena

to one of respondent’s agents, who had no connection with the

years at issue in this case, which made it necessary for

respondent to prepare a motion to quash.    The Court quashed the

subpoena as frivolous.   Finally, petitioner unreasonably refused

to stipulate matters not fairly in dispute, in violation of Rule

91.

      Considered together, petitioner’s actions constitute a

significant waste of the time and resources of this Court and of
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respondent.   Petitioner has persisted in this course of conduct

in a manner which evidences bad faith.       It is clear that mere

warnings have had no impact in deterring her.       Consequently, the

Court will exercise its discretion to impose a penalty pursuant

to section 6673(a)(1) that is designed to be significant in light

of petitioner’s apparent financial circumstances.       We shall

impose a penalty of $2,500.

     To reflect the foregoing,

                                              An appropriate order and

                                         decision will be entered.