T.C. Memo. 2009-215



                     UNITED STATES TAX COURT



                PEDRO JUAN RIVERA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12592-08.             Filed September 16, 2009.



          P failed to report wage income that he received in
     2000. R determined a deficiency and additions to tax
     pursuant to secs. 6651(a)(1) and (2) and 6654(a), I.R.C.

          Held: P is liable for the deficiency and the additions
     to tax. P is also liable for a penalty under sec.
     6673(a)(1), I.R.C.



     Pedro Juan Rivera, pro se.

     Lauren B. Epstein, Robert W. Dillard, and Lynn M. Curry, for

respondent.
                                 - 2 -

              MEMORANDUM FINDINGS OF FACT AND OPINION


     WHERRY, Judge:   This case is before the Court on a petition

for redetermination of an alleged $2,952 Federal income tax

deficiency and additions to tax that respondent determined for

petitioner’s 2000 tax year.    The issues for decision are:

     (1) Whether petitioner was required to include $26,881 in

wages in his 2000 gross income;

     (2) whether petitioner is liable under section 6651(a)(1)1

for a $549.22 addition to tax;

     (3) whether petitioner is liable under section 6651(a)(2)

for a $610.25 addition to tax;

     (4) whether petitioner is liable under section 6654(a) for a

$128.19 addition to tax; and

     (5) whether the Court should impose a penalty on petitioner

under section 6673(a)(1).

                         FINDINGS OF FACT

     At the time petitioner filed his petition, he resided in

Florida.   In 2000 petitioner worked for Terminix International

Co., LP (Terminix), and received $26,881.26 in wages.    He did not

file a Federal income tax return for 1999 or 2000 and did not

make any estimated tax payments in 2000.    In November 2007


     1
      All section references are to the Internal Revenue Code of
1986, as amended and in effect for the tax year at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 3 -

respondent prepared a section 6020(b) substitute for return for

petitioner’s 2000 tax year.   Respondent issued a notice of

deficiency on February 25, 2008, and petitioner filed a timely

petition with this Court on May 23, 2008.   A trial was held on

January 13 and 16, 2009, in Tampa, Florida.

                              OPINION

I.   Whether Petitioner Had Unreported Income

      Generally the Commissioner’s determination of a deficiency

is presumed correct, and the taxpayer has the burden of proving

it wrong.   See Rule 142(a); Welch v. Helvering, 

, 115

(1933).   However, the Court of Appeals for the Eleventh Circuit,

to which an appeal in this case would lie absent stipulation to

the contrary, has held that the presumption of correctness does

not attach unless the Commissioner introduces some evidence

linking the taxpayer to the alleged income-producing activity.

See Blohm v. Commissioner, 

, 1549 (11th Cir. 1993),

affg. T.C. Memo. 1991-636.

      Respondent has sufficiently linked petitioner to an income-

producing activity by introducing into evidence (1) a 2000 Form

W-2, Wage and Tax Statement, reflecting that Terminix paid

petitioner $26,881.26 in wages, (2) copies of paychecks that

Terminix sent to petitioner in 2000 and that petitioner endorsed,

and (3) payroll registers reflecting the wages Terminix paid

petitioner in 2000.   Thus petitioner has the burden to prove that
                                - 4 -

the deficiency was arbitrary or erroneous.2    See Blohm v.

Commissioner, supra at 1549.

     Petitioner has not met his burden.    He did not testify at

trial, did not present any witnesses or evidence, and did not

file a brief despite being given the opportunity to do so.

Although he argues that respondent failed to prove he is the

Pedro Juan Rivera to whom Terminix paid $26,881.26 in wages, he

admits that his Social Security number appears on the Form W-2,

the paychecks, and the payroll registers that respondent

introduced into evidence.    Petitioner’s argument is without merit

as are his other arguments, which are so frivolous that they do

not warrant discussion.3    See Crain v. Commissioner, 

, 1417 (5th Cir. 1984) (“We perceive no need to refute these

arguments with somber reasoning and copious citation of

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

colorable merit.”).   Because petitioner has not met his burden of

proof, we sustain respondent’s deficiency determination.




     2
      Although sec. 7491(a) may shift the burden of proof to the
Commissioner in specified circumstances, petitioner has not
satisfied the prerequisites under sec. 7491(a)(1) and (2) for
such a shift.
     3
      For example, petitioner argues that (1) the notice of
deficiency was invalid because it was not properly authorized,
(2) he was not a taxpayer, and (3) that respondent failed to
validate that he had a tax debt. None of these arguments has any
merit.
                                - 5 -

II.   Additions to Tax

      Respondent determined that petitioner is liable for

additions to tax under sections 6651(a)(1) and (2) and 6654(a).

Pursuant to section 7491(c), respondent has the burden of

production with respect to these additions to tax and is

therefore required to “come forward with sufficient evidence

indicating that it is appropriate to impose the relevant

penalty.”   See Higbee v. Commissioner, 

, 446 (2001).

However, “once the Commissioner meets his burden of production,

the taxpayer must come forward with evidence sufficient to

persuade a Court that the Commissioner’s determination is

incorrect.”

      A.   Section 6651(a)(1) Addition to Tax

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

file a timely return unless the taxpayer proves that such failure

is due to reasonable cause and not willful neglect.     See United

States v. Boyle, 

, 245 (1985).      Respondent satisfied

the burden of production by introducing into evidence a Form

3050, Certification of Lack of Record, reflecting that respondent

has no record of petitioner having filed a Federal income tax

return for 2000.    See Davis v. Commissioner, T.C. Memo. 2005-160

n.10, affd. 

(4th Cir. 2007).     Petitioner has

not shown that the Form 3050 was irregular and has not presented

any evidence to suggest that his failure to file was due to
                                 - 6 -

reasonable cause.     Accordingly, we sustain respondent’s

imposition of the addition to tax under section 6651(a)(1).

       B.   Section 6651(a)(2) Addition to Tax

       Section 6651(a)(2) imposes an addition to tax for failure to

timely pay the amount of tax shown on a return.

            The Commissioner’s burden of production with
       respect to the section 6651(a)(2) addition to tax
       requires that the Commissioner introduce evidence that
       a return showing the taxpayer’s tax liability was filed
       for the year in question. In a case such as this where
       the taxpayer did not file a return, the Commissioner
       must introduce evidence that an SFR [substitute for
       return] satisfying the requirements of section 6020(b)
       was made. See Cabirac v. Commissioner, * * * [

(2003)]. * * *

Wheeler v. Commissioner, 

, 210 (2006), affd. 

(10th Cir. 2008).     The section 6651(a)(2) addition to

tax is not imposed if the taxpayer proves that the failure to pay

is due to reasonable cause and not willful neglect.

       Under section 6651(g)(2), a return prepared by the Secretary

pursuant to section 6020(b) is treated as a return filed by the

taxpayer for the purpose of determining the amount of an addition

to tax under section 6651(a)(2).     To constitute a section 6020(b)

return, “the return must be subscribed, it must contain

sufficient information from which to compute the taxpayer’s tax

liability, and the return form and any attachments must purport

to be a ‘return’.”     Spurlock v. Commissioner, T.C. Memo. 2003-

124.
                                - 7 -

     Although petitioner did not file a Federal income tax return

for 2000, respondent introduced into evidence a document that

qualifies as a section 6020(b) return for that year.     See Wheeler

v. Commissioner, supra at 208-210.      The document contains a

November 19, 2007, “Proposed Individual Income Tax Assessment”,

which lists petitioner’s name, address, and Social Security

number and which provides sufficient information to compute his

tax liability.   The document also contains an “IRC Section

6020(b) ASFR Certification”, which states that the certification

along with the information identified in it “shall be treated as

the return filed by the taxpayer for purposes of determining the

amount of the additions to tax under paragraphs (2) and (3) of

section 6651(a).”

     Because petitioner did not pay the entire tax liability as

shown on the section 6020(b) return, respondent has met the

burden of production with respect to the section 6651(a)(2)

addition to tax.    Further, petitioner has not demonstrated or

introduced any evidence that his failure to pay is due to

reasonable cause and not willful neglect.     We therefore sustain

respondent’s imposition of the addition to tax under section

6651(a)(2).

     C.   Section 6654(a) Addition to Tax

     Section 6654(a) imposes an addition to tax on individual

taxpayers who underpay their estimated income tax.     The
                               - 8 -

Commissioner’s burden of production under section 7491(c) with

respect to that addition to tax requires the Commissioner, at a

minimum, to produce evidence that a taxpayer was required to make

an annual payment under section 6654(d)(1)(B).   See Wheeler v.

Commissioner, supra at 211.   The amount of any required annual

payment is the lesser of (1) 90 percent of the tax shown on the

individual’s return for the year or, if no return is filed, 90

percent of the individual’s tax for such year, or (2) if the

individual filed a return for the immediately preceding tax year,

a fixed percentage of the tax shown on that return.   Sec.

6654(d)(1)(B).

     Respondent has met the burden of production with respect to

the section 6654(a) addition to tax.   Because petitioner failed

to file Federal income tax returns for 1999 and 2000 as shown by

the two Forms 3050 respondent introduced into evidence, his

required annual payment of estimated tax for 2000 was 90 percent

of his tax for that year.   See Wheeler v. Commissioner, supra at

211-212.   Petitioner did not make his required estimated tax

payment for 2000.4   Moreover, he does not fit within any of the




     4
      Petitioner’s 2000 Form W-2 reflects $511.52 of Federal
income tax withheld. In the notice of deficiency respondent
rounded this figure down to $511 but should have rounded it up to
$512. In respondent’s Rule 155 computations respondent should
either correct this rounding error or explain why $511 is the
correct figure.
                                   - 9 -

exceptions listed in section 6654(e).5      We therefore sustain

respondent’s imposition of the addition to tax under section

6654(a).

III.       Section 6673(a)(1) Penalty

       Section 6673(a)(1) authorizes the Tax Court to impose a

penalty not in excess of $25,000 on a taxpayer for proceedings

instituted primarily for delay or in which the taxpayer’s

position is frivolous or groundless.       “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.’”       Williams v. Commissioner, 

, 144 (2000)

(quoting Coleman v. Commissioner, 

, 71 (7th Cir.

1986)).

       On March 3, 2009, respondent moved the Court to penalize

petitioner under section 6673(a)(1).       Respondent cites

petitioner’s failure to cooperate before and during trial as well



       5
      Sec. 6654(e) provides two exceptions to the sec. 6654(a)
addition to tax. First, the addition is not applicable if the
tax shown on the taxpayer’s return for the year in question (or,
if no return is filed, the taxpayer’s tax for that year), reduced
for these purposes by any allowable credit for wage withholding,
is less than $1,000. Sec. 6654(e)(1). Second, the addition is
not applicable if the taxpayer’s tax for the full 12-month
preceding taxable year was zero and the taxpayer was a citizen or
resident of the United States. Sec. 6654(e)(2). In light of our
earlier conclusion regarding petitioner’s wage income, petitioner
is liable for a deficiency for 2000 that net of withholding
exceeds $1,000. And, because petitioner failed to file a 1999
Federal income tax return, he has not shown that he had no tax
liability in 1999.
                                - 10 -

the frivolous positions petitioner has taken throughout the

proceeding.   Respondent also points to petitioner’s refusal to

stipulate that he is the Pedro Juan Rivera who worked for

Terminix in 2000.     Petitioner studiously avoided introducing any

evidence at all on this issue.    This forced respondent to

subpoena and call a witness, Greg Harmer, vice president of

transaction services, from Terminix’s parent corporation, Service

Master, to present evidence to prove that fact.6    The out-of-

pocket cost to the Government with respect to Mr. Harmer,

including airfare from Memphis, Tennessee, was at least $1,068.7

On April 15, 2009, petitioner filed a response, which contains a

variety of frivolous arguments that we need not mention.      See

Crain v. 

.

     Petitioner’s conduct in this case warrants a penalty under

section 6673(a)(1).    His failure to acknowledge even the most

basic facts, such as where he worked and when he worked there,


     6
      Mr. Harmer testified that

     our records show that a person who claimed to be Pedro
     Rivera and furnishing documents saying they were Pedro
     Rivera * * *--they had to produce the documents
     required by an I-9, so a Social Security card and a
     passport or a driver’s license or some other
     identification--came to our Terminix offices here in
     Florida in 1997, produced those documents, claimed to
     be Pedro Rivera, provided the Social Security number
     that is on these documents, and that we then employed
     and continued to pay that person from 1997 to 2001.
     7
      There were considerable other costs also involved to all
of the trial participants from lost time in court and as an
expense of operating the Court.
                               - 11 -

and his repeated assertion of frivolous arguments, particularly

his failure to acknowledge that he is the Pedro Juan Rivera who

worked at Terminix, were intended to delay and wasted hours of

the Court’s, respondent’s, and respondent’s witness’s time.

These actions also substantially and unjustifiably increased the

monetary cost borne by taxpayers who obey the law and promptly

pay their taxes.   To make matters worse, the Court repeatedly

warned petitioner that he could be penalized under section

6673(a)(1) for his conduct.8   He did not heed those warnings.   As

a result, we shall impose upon petitioner a $3,000 penalty

pursuant to section 6673(a)(1).

     The Court has considered all of petitioner’s contentions,

arguments, requests, and statements.    To the extent not discussed

herein, we conclude that they are meritless, moot, or irrelevant.

     To reflect the foregoing,


                                          An appropriate order will

                                    be issued, and decision will

                                    be entered under Rule 155.




     8
      Petitioner contends that the Court’s sec. 6673(a)(1)
warnings “constrained” him from cooperating with respondent or
diligently preparing his case. That contention, like all of his
other arguments, is frivolous and specious.