                   T.C. Summary Opinion 2008-7



                       UNITED STATES TAX COURT



            GERALD STEPHEN MACALA, II, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21605-03S.             Filed January 22, 2008.



     Gerald Stephen Macala, II, pro se.

     Randall L. Preheim, for respondent.


     VASQUEZ, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     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.
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this opinion shall not be treated as precedent for any other

case.

      This case is before the Court on respondent’s motion for

summary judgment pursuant to Rule 121.     After a concession,2 the

sole issue for decision is whether petitioner can exclude from

income wages earned during 2001 from working in Antarctica.

                              Background

      At the time he filed the petition, petitioner resided in

Santa Barbara, California.    During 2001, petitioner performed

services at McMurdo Station in Ross Island, Antarctica.     On his

2001 Federal income tax return, petitioner excluded wage income

earned and received during 2001 for services performed in

Antarctica.

                              Discussion

I.   Summary Judgment

      Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any material fact

and that the legal issues presented by the motion may be decided

as a matter of law.     See Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th



      2
        Respondent concedes that no penalty pursuant to sec. 6662
is due from petitioner for 2001.
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Cir. 1994).    We conclude that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of

law.

II.    In General

       Section 61(a) provides that gross income means all income

from whatever source derived.    Accordingly, citizens of the

United States generally are taxed on income earned outside the

geographical boundaries of the United States unless the income is

specifically excluded from gross income.    Specking v.

Commissioner, 117 T.C. 95, 101-102 (2001), affd. sub nom. Haessly

v. Commissioner, 68 Fed. Appx. 44 (9th Cir. 2003), affd. sub nom.

Umbach v. Commissioner, 357 F.3d 1108 (10th Cir. 2003).

Exclusions from income are construed narrowly, and taxpayers must

bring themselves within the clear scope of the exclusion.       Id.

III.    Section 911

       In Arnett v. Commissioner, 126 T.C. 89, 91-96 (2006) (Arnett

I), affd. 473 F.3d 790 (7th Cir. 2007) (Arnett II), we addressed

the arguments made by the parties herein regarding section 911.

The U.S. Court of Appeals for the Seventh Circuit agreed with our

analysis of section 911 and affirmed our conclusion that

Antarctica is not a “foreign country” pursuant to section 911 and

the regulations thereunder.     Arnett v. Commissioner, 473 F.3d at

799.    We shall not repeat our analysis from Arnett I herein.    We
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follow our analysis and holding in Arnett I and the analysis and

holding of the Court of Appeals in Arnett II.3

IV.   Conclusion

      Accordingly, for the reasons stated in Arnett I, Arnett II,

and herein, we conclude that petitioner cannot exclude from gross

income wages earned during 2001 from working in Antarctica.




      3
        In Arnett v. Commissioner, 126 T.C. 89 (2006), affd. 473
F.3d 790 (7th Cir. 2007), we concluded our Opinion with a
citation of sec. 863(d) suggesting that sec. 863(d) provided an
additional reason to rule against the taxpayer. Id. at 96 (“See
also sec. 863(d) (providing that income earned in Antarctica by a
U.S. person is sourced in the United States).”). In Arnett v.
Commissioner, 473 F.3d at 797, the U.S. Court of Appeals for the
Seventh Circuit addressed sec. 863(d) in greater detail, stating:

           At the outset, we think that it is important to
      note that considering Antarctica not to be a “foreign
      country” is compatible with the general statutory
      scheme. Notably, section 911 is found under subtitle
      A, chapter 1, subchapter N of the IRC, which is
      designated “Tax Based on Income from Sources Within or
      Without the United States.” Part I of this subchapter,
      entitled “Source Rules and Other General Rules Relating
      to Foreign Income,” deems any activity in Antarctica to
      be “space or ocean activity.” In turn, the United
      States is designated the source country of income from
      such activity when earned by a citizen of the United
      States. 26 U.S.C. § 863(d). Although this provision
      does not provide a definitive answer as to whether
      Antarctica is a “foreign country,” it supports the
      conclusion that section 911 is not intended to apply to
      income earned for services provided in Antarctica.

We take this opportunity to state our agreement with the Court of
Appeals’ conclusion set forth above. See also HCSC-Laundry v.
United States, 450 U.S. 1, 6 (1981).
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To reflect the foregoing,


                                         An appropriate order and

                                    decision will be entered.
