                        T.C. Memo. 2002-60



                      UNITED STATES TAX COURT



                  DALE I. DIRKES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11925-98.              Filed February 28, 2002.



     Dale I. Dirkes, pro se.

     Frederick W. Krieg, for respondent.



                        MEMORANDUM OPINION

     DAWSON, Judge:   This case was assigned to Special Trial

Judge Daniel J. Dinan pursuant to the provisions of section

7443A(b)(5) and Rules 180, 181, and 183.1    The Court agrees with




     1
        Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year in issue, and Rule
references are to the Tax Court Rules of Practice and Procedure.
                                 - 2 -

and adopts the opinion of the Special Trial Judge, which is set

forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

     DINAN, Special Trial Judge:     This matter is before the Court

on respondent’s Motion for Summary Judgment, filed pursuant to

Rule 121(a).    Petitioner filed an objection to the motion.

                            Background

     On April 7, 1998, respondent sent a notice of deficiency to

petitioner determining a deficiency in his Federal income tax for

1994 of $23,543, and additions to tax pursuant to section

6651(a)(1) and section 6654(a) of $3,498.50 and $671.13,

respectively.    Respondent determined that petitioner failed to

timely file his Federal income tax return for 1994, failed to pay

estimated taxes, and failed to report the following amounts

includable in his income:

          Capital gains                      $60,628
          Wages                               37,323

Respondent also determined that petitioner was entitled to a

standard deduction of $3,175 and an exemption of $1,862.

     Petitioner timely filed his petition with the Court on July

6, 1998, in which he alleged, in pertinent part:

          4. The determination of the tax set forth in said
     notice of deficiency is based upon the following
     errors:

               A. The Commissioner has erroneously
          alleged that the petitioner received thirty-
                                 - 3 -

            seven thousand, three hundred and twenty-
            three dollars, ($37,323), in wages.

                 B. The Commissioner has erroneously
            alleged that the petitioner received a
            capital gain of sixty thousand, six hundred
            and twenty-eight dollars, ($60,628).

            *        *       *     *       *       *         *

                 D. The Commissioner has erroneously
            alleged that the petitioner owes a
            delinquency penalty of three thousand, four
            hundred ninety-eight dollars and fifty cents,
            ($3,498.50), pursuant to Internal Revenue
            Code Sec. 6651(a)(1).

                 E. The Commissioner has erroneously
            alleged that petitioner owes a penalty of six
            hundred seventy-one dollars and thirteen
            cents, ($671.13), for failure to file
            quarterly estimates pursuant to Internal
            Revenue Code Sec. 6654.

Further, petitioner alleges:

          5. The facts upon which petitioner relies, as the
     basis of the petitioner’s case, are as follows:

                 A. To the best of petitioner’s
            information, knowledge, and belief, the
            petitioner’s total income was less than
            twenty thousand dollars, ($20,000). This
            compensation consisted of approximately
            eleven, (11), days of regular wages with the
            remaining compensation deriving from the
            exercise of Incentive Stock Option(s).
            Petitioner is without documentation
            sufficient to produce a more detailed
            analysis of said compensation.

        *        *       *        *       *       *         *

                 C. The petitioner’s failure to file
            federal income tax returns in a timely manner
            is not due to or resultant from willful
            neglect.
                                - 4 -


               D. The petitioner’s failure to file
          federal income tax returns in a timely manner
          is due to and resultant from reasonable
          cause.

     In his Motion for Summary Judgment, respondent, for the

purpose of this motion, concedes the capital gain adjustment of

the statutory notice of deficiency.     Thus, this adjustment is no

longer at issue.

     The notice of deficiency allowed petitioner a standard

deduction of $3,175 based on “married filing separate” status.

Respondent concedes that petitioner should be allowed a standard

deduction of $3,800 based upon “single” filing status.    This

adjustment is not at issue.

     For the purpose of this motion, respondent concedes the

sections 6651(a)(1) and 6654(a) additions to tax.    Thus, these

adjustments are no longer at issue.

     Before respondent filed the motion for summary judgment,

petitioner filed a reply to respondent’s answer to the petition

in which he avers:

          2. On or about September 29, 1998, Petitioner
     received his W2 forms for the first time from his
     previous employer, MCI Communications Corporation
     * * *. Those W2's indicate that Petitioner’s total
     income for the calendar year 1994 was thirty-seven
     thousand, three hundred twenty-three dollars and eleven
     cents, ($37,323.11). This income includes all
     Incentive Stock Options, (ICO’s), exercised in calendar
     year 1994.

     The notice of deficiency included in petitioner’s income

wages of $37,323 for 1994.    Pursuant to petitioner’s admission in
                               - 5 -

paragraph 2 of his reply to respondent’s answer, he is deemed to

have conceded that amount.   Thus, these wages are no longer in

issue.

                             Discussion

     Summary judgment is appropriate “if the pleadings, answers

to interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

decision may be rendered as a matter of law.”   Rule 121(b);

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994); Naftel v. Commissioner, 85 T.C. 527,

529 (1985).   Summary judgment is intended to expedite litigation

and avoid unnecessary and expensive trials.   See Fla. Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988); Espinoza v.

Commissioner, 78 T.C. 412, 415-416 (1982).    The moving party

bears the burden of proving that there is no genuine issue of

material fact, and factual inferences will be made in a manner

most favorable to the party opposing summary judgment.   See

Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985).

     As previously stated, the issues framed by the pleadings in

this case are: (1) Whether petitioner failed to report capital

gain of $60,628; (2) whether he failed to report wages of

$37,323; (3) whether he is allowed an exemption of $1,862; (4)

whether he is allowed a standard deduction of $3,175; (5) whether
                              - 6 -

he is liable for an addition to tax pursuant to section

6651(a)(1) of $3,498.50; and (6) whether he is liable for an

addition to tax pursuant to section 6654(a) of $671.13.

     For the purpose of this motion, respondent concedes the

capital gain adjustment of $60,628, and petitioner admits having

received wages of $37,323 from MCI for 1994.

     Based on decreased adjusted gross income resulting from

respondent’s concessions, respondent concedes that petitioner is

entitled to an exemption in the amount of $2,450.   This

adjustment is not at issue.

     Respondent concedes that petitioner is entitled to a

standard deduction of $3,800 based upon “single” filing status.

This adjustment is not at issue.

     Respondent concedes that petitioner is not liable for

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

                         Conclusion

     For the reasons stated herein, we find and hold that there

is no genuine issue as to any material fact remaining for

litigation in this case and that a decision may be rendered as a

matter of law.
                            - 7 -

To reflect the foregoing,

                                         An order granting

                                    respondent’s motion for

                                    summary judgment will be

                                    issued, and decision will be

                                    entered pursuant to Rule 155.
