                        T.C. Memo. 1997-440



                      UNITED STATES TAX COURT



                 FREDERICK M. FOX, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24822-95.              Filed September 25, 1997.



     Frederick M. Fox, pro se.

     Christine V. Olsen, for respondent.



                        MEMORANDUM OPINION


     COLVIN, Judge:   This matter is before the Court on

respondent's motion for summary judgment under Rule 121.1   As

discussed below, we will grant respondent's motion.   We will also


     1
      Rule references are to the Tax Court Rules of Practice and
Procedure. Section references are to the Internal Revenue Code
as in effect for the years in issue.
                                 - 2 -


impose a penalty against petitioner under section 6673 in the

amount of $7,500.

     Respondent determined deficiencies in petitioner's income

taxes and additions to tax as follows:

                                       Additions to tax
     Year         Deficiency     Sec. 6651(a)(1)     Sec. 6654
     1989          $34,925           $8,731           $2,362
     1990           31,218            7,805             2,057
     1991           40,067           10,017             2,307
     1992           42,552           10,638             1,858

                               Background

A.   Petitioner

     Petitioner lived in Irvine, California, when he filed the

petition in this case.

     Petitioner previously petitioned this Court in cases decided

at Fox v. Commissioner, T.C. Memo. 1989-232, affd. without

published opinion 943 F.2d 55 (9th Cir. 1991) (Fox I); Fox v.

Commissioner, T.C. Memo. 1993-37 (Fox II); and Fox v.

Commissioner, T.C. Memo. 1993-277, affd. without published

opinion 69 F.3d 543 (9th Cir. 1995) (Fox III).    Petitioner's

positions in the previous cases were frivolous and groundless.

In Fox I and Fox III, we awarded penalties to the United States

under section 6673 on our own motion.

B.   Petition

     In the petition, petitioner contended respondent erred in

determining:    (1) He was liable for deficiencies and additions to

tax; (2) his wages, interest, dividends, capital gains, and
                                 - 3 -


income from stock sales were includable in gross income; (3) he

had itemized deductions in the amounts of $31,060, $40,354, and

$37,704 for 1989 to 1991, and a standard deduction in the amount

of $3,600 for 1992; and (4) he was liable for additions to tax

for failure to file returns and failure to pay estimated tax for

1989 to 1992.   In the petition, petitioner also contended:   (1)

Respondent's answers to his inquiries were not courteous or

considerate, and (2) respondent violated his rights under the

Taxpayer Bill of Rights, subtitle J of the Technical and

Miscellaneous Revenue Act of 1988 (TAMRA), Pub. L. 100-647, 102

Stat. 334, and other rights.

     The facts upon which petitioner relies in his petition to

support these contentions are:

     he was never notified by the District Director that he
     was required to maintain books and records and file a
     return in accordance with IRC 6001 and 26 CFR 1.
     6001(d);

     * * * the Form 1040 is not associated with nor is it
     the form required to be used to collect the income tax
     under IRC Subtitle A, section 1;

     * * * there has been a trespass of jurisdiction on the
     part of the Commissioner and petitioner squarely
     challenges the Commissioner's jurisdiction in issuing
     these notices of deficiency.

     Nothing listed by petitioner as facts could possibly justify

a holding that respondent's determinations are incorrect.
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C.   Respondent's Request for Admissions and Petitioner's
     Responses

     On June 5, 1997, respondent served a request for admissions

on petitioner under Rule 90.   Respondent's request for admissions

and petitioner's responses are as follows:

     1.   Petitioner admits that he did not file a U.S.

Individual Income Tax Return, Form 1040, for 1989, 1990, 1991 and

1992.

     2.   Petitioner admits that from 1989 to 1992 he received:

(a) Compensation for services as an airline pilot for American

Airlines in the amounts of $149,663, $150,708, $176,719, and

$155,171; (b) interest income from the American Airlines Credit

Union in the amounts of $521, $147, $409, and $587; and (c)

dividend income from various Merrill Lynch accounts in the

amounts of $853, $905, $1,075, and $457.   Petitioner denies that

this income is taxable.   Petitioner's response also includes the

word "jurisdiction" without explanation.   We assume this (and

other unexplained references to "jurisdiction" in petitioner's

response to respondent's request for admissions) relates to

petitioner's contention in his petition that the Commissioner

lacked jurisdiction to issue the notices of deficiency.

     3.   Petitioner admits that he received:   (a) Capital gain

income from various Merrill Lynch accounts totaling $4,754 in

1989; and (b) income of $88 from the sale of stock from

Merrill Lynch in 1990, and $2,786 in 1991.   Petitioner denies
                                - 5 -


that this income is taxable.    Petitioner's responses relating to

these items also include without explanation the word

"jurisdiction".

     4.   Petitioner denies that he resided in California from

1989 to 1992.    Petitioner responded as follows:   "Did not

'reside' as that term is stipulatively used in Amendment 14 to

the U.S. Constitution.    Jurisdiction."

     Respondent attached several exhibits to the request for

admissions and the motion for summary judgment.     The exhibits,

and petitioner's responses to respondent's request for

admissions, are as follows:

     1.   A copy of the notices of deficiency issued to

petitioner on:    (a) March 9, 1994, for 1989 to 1991; and (b)

September 8, 1994, for 1992.    Petitioner admitted receipt, but

denied that he is liable for income taxes.    Petitioner stated

"jurisdiction" without explanation.

     2.   Copies of several statements or letters from petitioner

to respondent.    Petitioner admits.

     3.   A copy of a letter from American Airlines to Frederick

M. Fox, dated September 2, 1992.    Petitioner admits.
                                - 6 -


     4.   A copy of a notice of bill from Frederick J. Fox dated

December 9, 1992.    Petitioner responded "Denies.   Wrong Frederick

Fox."2

     5.   A copy of an affidavit of applicable law and denial of

specific liability for Federal income taxes during calendar years

1989-92 from petitioner dated June 9, 1993.    Petitioner admits.

     6.   A copy of letters from petitioner dated April 12, 1994.

Petitioner admits.

     7.   A copy of a document from petitioner entitled "DEMAND

for you to PROVE the existence of JURISDICTION at the

administrative level" dated June 6, 1994.    Petitioner admits.

     8.   A copy of a document from petitioner entitled "BY

AFFIDAVIT" dated April 14, 1995.    Petitioner admits.

     9.   A copy of a document from petitioner entitled

"MEMORANDUM AT LAW BY AFFIDAVIT" dated June 20, 1996.    Petitioner

admits.

     The statements by and letters and documents from petitioner

attached to respondent's motion for summary judgment and request

for admissions recite various frivolous tax protester arguments.

                             Discussion

A.   Respondent's Motion for Summary Judgment




     2
      We do not consider this document in deciding whether to
grant respondent's motion for summary judgment.
                                - 7 -


       Respondent moved for summary judgment on July 21, 1997,

pursuant to Rule 121, on the grounds that there is no genuine

issue of material fact for trial.    Petitioner objected and moved

to strike respondent's motion for summary judgment on August 13,

1997.

       A decision will be rendered on a motion for summary judgment

if the pleadings, answers to interrogatories, deposition,

admissions, and any other acceptable materials, together with the

affidavits, if any, show that there is no genuine issue of

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

law.    Rule 121(b); Southern v. Commissioner, 87 T.C. 49, 51-52

(1986).    The burden of proving that there is no genuine issue of

material fact is on the moving party.    Naftel v. Commissioner, 85

T.C. 527, 529 (1985); Espinoza v. Commissioner, 78 T.C. 412, 416

(1982).

       Matter admitted under Rule 90 is conclusively established

unless the Court on motion permits the admitting party to

withdraw or modify the admission.    Rule 90(f).   Petitioner has

not asked the Court to withdraw or modify his admissions.

       Petitioner admits that he received income in the amount

respondent determined.    He admits that he did not file tax

returns for the years at issue.    He has alleged no facts in the

petition that could warrant a holding that he is not liable for

the addition to tax for failure to file returns under section
                                - 8 -


6651 or failure to pay estimated tax under section 6654, or that

respondent's determination relating to his itemized deductions

for 1989, 1990, and 1991 and his standard deduction for 1992, was

in error.    Likewise, he did not contend in his response to

respondent's summary judgment motion that any material facts are

in dispute relating to respondent's determination.    We conclude

that his objections to respondent's determinations regarding his

deductions and the additions to tax are based solely on the same

frivolous contentions on which his entire case is based.

     Petitioner asserts that the District Director never notified

him that he was required to maintain books and records and file a

tax return.    The District Director is not required to do so.    See

sec. 6001.    He also frivolously asserts that the Form 1040 is

invalid and that respondent lacked jurisdiction to issue the

notice of deficiency.    In petitioner's objections to respondent's

motion for summary judgment, as supplemented, and petitioner's

motion to strike respondent's motion, petitioner claims he is not

a protester; however, his contentions are merely a rehash of

familiar tax protester arguments.    See Wilcox v. Commissioner,

848 F.2d 1007 (9th Cir. 1988), affg. T.C. Memo. 1987-225; United

States v. Romero, 640 F.2d 1014 (9th Cir. 1981).

     Petitioner has not alleged any facts fairly related to

respondent's determinations, and he has not raised any issue that

could possibly be affected by a hearing.    See Knighten v.
                              - 9 -


Commissioner, 702 F.2d 59 (5th Cir. 1983).     In Knighten, the U.S.

Court of Appeals for the Fifth Circuit said:

     Since he has never alleged any facts at all, and his
     legal arguments were clearly without merit, he has
     failed to demonstrate that there is any issue the
     resolution of which could possibly be affected by a
     hearing; thus, there is simply no point in having one.
     The Consitution does not require such futile exercises.
     [Id. at 61.]

See also Morrison v. Commissioner, 81 T.C. 644, 651 (1983)

(summary judgment proper where taxpayers did not set forth

specific facts as required by Rule 121(d)).

     We have examined all the materials in the record and

construed facts most favorably for petitioner.    We conclude that

there is no dispute as to any material fact, that petitioner's

contentions are frivolous, and that respondent is entitled to

summary judgment.

     We will deny petitioner's motion to strike respondent's

motion for summary judgment filed August 13, 1997, for the same

reasons for which we grant respondent's motion for summary

judgment.

B.   Imposition of a Penalty Under Section 6673

     We next decide whether the Court, on its own motion, should

award a penalty to the United States under section 6673.

     Section 6673 provides that the Court may require the

taxpayer to pay a penalty to the United States not in excess of

$25,000 when proceedings have been instituted or maintained
                              - 10 -


primarily for delay, where the taxpayer's position is frivolous

or groundless, or where the taxpayer unreasonably fails to pursue

administrative remedies.   A taxpayer's position is frivolous or

groundless if it is contrary to established law and unsupported

by a reasoned, colorable argument for change in the law.    Coleman

v. Commissioner, 791 F.2d 68, 71 (7th Cir. 1986); Sicalides v.

Commissioner, T.C. Memo. 1989-164.

     It is beyond any reasoned dispute that petitioner is subject

to Federal income taxation and that his position in his previous

cases was frivolous, groundless, and instituted primarily for

delay.   Fox I, Fox III; see Fox II.   Petitioner continues to

waste respondent's and the Court's time with stale tax protester

arguments.   Petitioner's written materials show that he has an

ability to twist tax laws to support his frivolous positions.

Fox III.   We imposed penalties under section 6673 on our own

motion in Fox I and Fox III, which were filed before petitioner

filed his petition in this case.
                             - 11 -


     We require petitioner to pay a penalty of $7,500 to the

United States under section 6673.


                                         An appropriate order will

                                    be issued, and decision will

                                    be entered for respondent.
