                   T.C. Memo. 2007-80



                 UNITED STATES TAX COURT



            ROBERT S. BROOKS, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No.   24689-04.            Filed April 4, 2007.



     P failed to file an income tax return or pay any amount
of Federal income tax for 2002. R issued a notice of
deficiency for the amount of the income tax plus additions
to tax. P filed a petition for review of the deficiency,
and both parties have moved for summary judgment.


     Held: Summary judgment in favor of R is appropriate
with respect to P’s liability for the Federal income tax
plus the addition to tax for failure to file a return.
Summary judgment is not appropriate for the additions to tax
for failure to pay tax shown on a return or failure to make
estimated tax payments.



Robert S. Brooks, pro se.

Innessa Glazman-Molot, for respondent.
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                        MEMORANDUM OPINION


     NIMS, Judge:   Respondent determined a deficiency of $13,876

in petitioner’s Federal income tax for 2002.   Respondent also

determined additions to tax of $3,122.10 for failure to file a

return under section 6651(a)(1), $1,040.70 for failure to pay tax

shown on a return under section 6651(a)(2), and $463.69 for

failure to pay estimated tax under section 6654(a).

     Petitioner objects to paying the income tax on numerous

grounds, all of which are protester-type arguments.    The issues

for our determination are whether respondent correctly determined

petitioner’s tax liability and the additions to tax.

     Both parties have moved for summary judgment pursuant to

Rule 121.   Unless otherwise indicated, all section references are

to the Internal Revenue Code in effect for the tax year in issue,

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

                            Background

     At the time he filed the petition in this case, petitioner

resided in West Virginia.

     In 2002, petitioner received W-2 income in the amount of

$68,708 from the Arlington County School Board.   He also
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received interest income in the amount of $3,909.00 from First

Exchange Bank in Mannington, West Virginia.    Petitioner did not

have any income taxes withheld, and he made no other tax payments

for the year.

       Petitioner did not file an income tax return for 2002.

Respondent asserts that on August 2, 2004, a substitute for

return was filed on petitioner’s behalf pursuant to section

6020(b).    On September 28, 2004, respondent mailed a notice of

deficiency to petitioner showing the calculated income tax along

with additions to tax and interest.     After brief correspondence

with the Internal Revenue Service (IRS), petitioner filed his

petition challenging the deficiency and resulting additions to

tax.

                             Discussion

       Petitioner makes various tax protester-type arguments,

ultimately concluding that no statutes render him liable for

Federal income taxes.    For example, among other things,

petitioner claims in his amended petition that no deficiency for

2002 exists based on the definition of “deficiency”, that since

he received no income in the “constitutional” sense he had no

taxable income for 2002, and that because he received no income

in the “constitutional” sense, he determined that he had no

taxable income and therefore no tax liability to report.    As we

have said of similar arguments on previous occasions,
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petitioner’s arguments are frivolous.    We need not refute them

with somber reasoning and copious citation of precedent; to do so

might suggest that they have some colorable merit.    See Crain v.

Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984); Guthrie v.

Commissioner, T.C. Memo. 2006-81.   We hold that petitioner is

liable for Federal income tax for 2002 and the deficiency of

$13,876 as determined by respondent.    Summary judgment for this

deficiency is granted in favor of respondent.

     As previously stated, respondent also seeks additions to tax

of $3,122.10 for failure to file a return under section

6651(a)(1), $1,040.70 for failure to pay tax shown on a return

under section 6651(a)(2), and $463.69 for failure to pay

estimated tax under section 6654(a).    Under section 7491(c), the

Commissioner has the burden of production as to whether a

taxpayer is liable for an addition to tax and must provide

sufficient evidence showing that imposing the addition to tax is

appropriate in the particular case.     Higbee v. Commissioner, 116

T.C. 438 (2001).

     Respondent has met this burden of production for the section

6651(a)(1) failure to file addition to tax.    Respondent has shown

that petitioner did not file an income tax return for 2002, and

petitioner has set forth no specific facts showing that there is

a genuine issue for trial as to whether his failure to file was

due to reasonable cause.   Accordingly, petitioner is liable for
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the $3,122.10 addition to tax under section 6651(a)(1), and we

shall grant summary judgment in favor of respondent on this

issue.

     We hold that summary judgment is not appropriate regarding

the $1,040.70 addition to tax pursuant to section 6651(a)(2) for

failure to pay tax shown on a return by the due date for payment.

For the section 6651(a)(2) addition to tax to apply, there must

be an amount of tax shown on a return.     Cabirac v. Commissioner,

120 T.C. 163, 170 (2003).   Even where the taxpayer did not file a

valid return, as in this case, a return filed by the Secretary

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

taxpayer under section 6651(g)(2).     However, we have required

that certain elements be present for qualification as a

substitute return under section 6020(b) for section 6651(a)(2)

purposes.

     To constitute a substitute return within the meaning of

section 6020(b), the components held out to be a return need to

be subscribed, contain sufficient information from which

petitioner’s tax liabilities can be calculated, and purport to be

a return.   See Millsap v. Commissioner, 91 T.C. 926, 930 (1988).

We have held that certain combinations of items meet this

standard and have declined to deem others sufficient.

     For example, in Hennard v. Commissioner, T.C. Memo. 2005-

275, an unsubscribed Form 1040, U.S. Individual Income Tax
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Return, a revenue agent’s report containing sufficient

information to calculate petitioner’s tax liability, a Form 4549,

Income Tax Examination Changes, and a Form 13496, IRC Section

6020(b) Certification, signed by respondent’s examination

operations manager combined to yield a substitute return.    An

unsubscribed Form 1040 along with the attached revenue agent’s

report containing all relevant information also qualified as a

substitute return in Millsap v. Commissioner, supra.     Finally, in

Conovitz v. Commissioner, T.C. Memo. 1980-22, we held that a Form

1040 with the taxpayer’s name, address, and Social Security

number plus a Form 1902-E, Explanation of Adjustments, showing

petitioner’s wages, standard deduction, and exemption that was

prepared at the same time and in conjunction with the Form 1040

was a substitute return.

     In contrast to the above cases, we have declined to accept

other combinations of evidence as substitute returns for section

6651(a)(2) purposes.   A record containing a substantially blank

and unsubscribed Form 1040 filed February 23, 2000, a notice of

proposed adjustments dated May 31, 2000, and a revenue agent’s

report attached to the notice, which contained sufficient

information from which to calculate petitioner’s tax liability,

nevertheless did not meet the standard in Cabirac v.

Commissioner, supra.   In Spurlock v. Commissioner, T.C. Memo.

2003-124, an untranslatable computer printout noting a received
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date of October 7, 1999; Form 1040 with petitioner’s name,

address, Social Security number, and filing status dated

September 23, 1999; both computer-generated and manual Forms

5344, Examination Closing Record, showing petitioner’s tax

liability, payments, and adjustments; Form 4549, Income Tax

Examination Changes, dated October 18, 1999; and signed “30-day

letter” dated October 18, 1999, did not constitute a substitute

for return (SFR).   In a final example, a statement of account

showing SFR document locator numbers for what were presumed to be

“dummy returns” showing only taxpayer’s name, address, and Social

Security number did not qualify as an SFR in Phillips v.

Commissioner, 86 T.C. 433 (1986), affd. in part, revd. in part on

a different issue 851 F.2d 1492 (D.C. Cir. 1988).   In Wheeler v.

Commissioner, 127 T.C. 200, 210 (2006), a Form 4340, Certificate

of Assessments, Payments, and Other Specified Matters, containing

a cryptic reference to a “Substitute for Return” was not

considered sufficient for purposes of section 6020(b).

     In this case, respondent asserted in his motion for summary

judgment that an SFR was prepared on petitioner’s behalf on

August 2, 2004.   Respondent offered this purported “return” in an

attached exhibit containing only a Form 13496, IRC Section

6020(b) Certification, signed by respondent’s exam operations

manager, a Form 4549, Income Tax Examination Changes, and a

substantially incomprehensible computer printout of numbers and
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symbols.   Notably missing is anything resembling a Form 1040 or a

transcript of account showing the entry of data used to establish

the taxpayer’s IRS account, as claimed in the certification.    In

a separate exhibit, respondent offered a printout of petitioner’s

IRS account as evidence that an assessment had not been made in

this case.   Though this printout appears to reflect an SFR entry

on July 26, 2004, with an accompanying document locator number,

this printout lacks any pertinent information besides the

taxpayer’s Social Security number.     Even if we were to reasonably

infer that the administrative SFR entry corresponds to a dummy

return for petitioner for the year 2002, see Phillips v.

Commissioner, supra at 437, we cannot say that these documents

meet the requirements of a section 6020(b) return.

     An assortment of documents spread throughout the record,

though altogether providing the requisite information, does not

constitute a return.   Cabirac v. Commissioner, supra at 172.

Furthermore, simply being able to determine the tax liability

from respondent’s files does not accord them status as a return.

Spurlock v. Commissioner, T.C. Memo. 2003-124.     Indeed, if such a

lack of formality were to prevail, the section 6651(a)(2) penalty

would be appropriate in every case by virtue of sections 6020(b)

and 6651(g).   Cabirac v. Commissioner, supra at 172.
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       Overall, to say that respondent’s evidence in this case

shows that a return meeting the requirements of section 6020(b)

was filed is too much of a stretch, especially given respondent’s

burden of production.    We therefore hold that neither petitioner

nor respondent is entitled to summary judgment on this issue.

       Respondent also has not met the burden of production with

respect to the section 6654 addition to tax for failure to make

estimated tax payments.    To meet this burden, respondent must

show that petitioner had a “required annual payment” as set forth

in section 6654(d).     Wheeler v. Commissioner, supra at 200, 210-

212.    The required annual payment equals the lesser of (1) 90

percent of the tax shown on the return for the taxable year (or

90 percent of the tax for such year if no return is filed), or

(2) 100 percent of the tax shown on the individual’s return for

the preceding taxable year (if the individual filed a return for

that preceding year).    Sec. 6654(d)(1)(B).   We know that 90

percent of the tax for the 2002 taxable year is $12,488.40 (90

percent of $13,876).    But, respondent has not offered anything

showing either the amount of tax shown on petitioner’s 2001

return or whether petitioner failed to file a return for 2001.

Since the possibility exists that petitioner filed a return for

2001 on which the amount of tax shown was zero, thus making the

lesser of the two amounts equal to zero for purposes of section
                             - 10 -

6654(d)(1)(B), we therefore cannot definitively conclude that

petitioner had a required annual payment.    Summary judgment is

not appropriate on this issue.



                                      An appropriate order

                                 will be issued.
