                        T.C. Memo. 1997-350



                      UNITED STATES TAX COURT




                FRANCIS Z. MISCHEL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent




     Docket No. 24938-95.                       Filed July 30, 1997.




     Francis Z. Mischel, pro se.

     Pamelya P. Herndon, for respondent.




             MEMORANDUM FINDINGS OF FACT AND OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4) of the Internal Revenue Code of 1986, as amended, and
                                - 2 -

Rules 180, 181, and 183.1    The Court agrees with and adopts the

Opinion of the Special Trial Judge, which is set forth below.

                  OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:     Respondent determined a

deficiency in petitioner's Federal income tax for the taxable

year 1992 in the amount of $2,096 and an addition to tax under

section 6651(a)(1) in the amount of $519.    In contrast,

petitioner claims an overpayment in the amount of $352,100.

     After concessions by petitioner,2 the issues for decision

are as follows:

     (1) Whether respondent may, in determining the deficiency in

income tax against petitioner, disregard the community property

laws of the State of Arizona;

     (2) Whether, for purposes of determining the applicable tax

rates and standard deduction, petitioner's filing status is that

of a married person filing jointly, a married person filing

separately, or a head-of-household;

     (3) whether petitioner is entitled to dependency exemption

deductions for her three children;


     1
          Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for 1992, the taxable year
in issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
     2
          Petitioner concedes that she worked for Sandia Oil Co.
and Show Low Gemstones, Inc. in 1992 and received wages during
that year from those companies in the amounts of $5,735 and
$13,518, respectively.
                               - 3 -

     (4) whether petitioner is entitled to an additional

exemption for her husband;

     (5) whether petitioner is entitled to an earned income

credit;

     (6) whether petitioner is liable for an addition to tax

under section 6651(a)(1) for failure to file an income tax

return;

     (7) whether petitioner overpaid her income tax; and

     (8) whether petitioner should be liable for a penalty under

section 6673.

                        FINDINGS OF FACT

     None of the facts have been stipulated.   Petitioner Francis

Z. Mischel (petitioner) resided in St. Johns, Arizona, at the

time that her petition was filed with the Court.

A. Petitioner and Her Family

     Petitioner was married to Le W. Mischel (Mr. Mischel)

throughout 1992 and lived with him during the year.   Mr. Mischel

was not gainfully employed in 1992 and received no income during

the year; he was also without financial resources.

     Petitioner and Mr. Mischel have 3 children: Andre, a son,

who turned 12 in 1992; Daphne, a daughter, who turned 17 in 1992;

and Melody, a daughter, who turned 18 in 1992.   Andre, Daphne,

and Melody resided with petitioner and Mr. Mischel in 1992,

except for that part of the year when Daphne or Melody may have

been away in college.
                               - 4 -

B. Petitioner's Employment

     Petitioner worked for Sandia Oil Co. (Sandia) and Show Low

Gemstones, Inc. (Show Low) in 1992.    During that year, petitioner

received wages from those companies in the amounts of $5,735 and

$13,518, respectively, for a total of $19,253.   No Federal income

tax was withheld from petitioner's wages by Sandia; Federal

income tax in the amount of $20 was withheld from petitioner's

wages by Show Low.

     Petitioner provided the sole support for herself and her

family in 1992.

C. Petitioner's Form 1040A

     On April 23, 1993, respondent received a Form 1040A (U.S.

Individual Income Tax Return) that purported to be an income tax

return for 1992 (the Form 1040A).   Although the Form 1040A was

signed by petitioner, it was prepared by (or at the direction of)

Mr. Mischel.

     The Form 1040A disclosed petitioner's filing status as

"head-of-household", claimed the standard deduction in the amount

appropriate for that filing status, and listed Andre, Daphne, and

Melody as dependents.   The Form 1040A also included the following

numerical entries:
                               - 5 -

               Entry                         Amount
     Wages, salaries, tips, etc.         $(207,485.41)
     Total income                         (207,485.41)
     Total adjustments to income                -0-
     Adjusted gross income                (207,485.41)
     Standard deduction                      5,250.00
     Exemptions (4 @ $2,300 ea.)             9,200.00
     Taxable income                             -0-

     Tax                                         -0-
     Total tax                                   -0-
     Payments:
         tax withheld          $303,114.25
         estimated tax payment      602.50
         earned income credit     1,384.00
     Total payments                        $305,100.75
     Tax informant fee                       47,000.00
     Overpaid/refund                       $352,100.75



     At trial, the entry of $(207,485.41) was described as

consisting of the following items:

                Item                         Amount
     Fraudulent IRS claim                $(188,000.00)
     Arizona tax based on fraud-
       ulent IRS information               (38,739.56)
     Subtotal                            $(226,739.56)
     Wages (Sandia & Show Low)              19,253.00
     Total                               $(207,486.56)


The "fraudulent IRS claim" apparently relates to what petitioner

regards as a fraudulent assessment(s) or claim made by respondent

against petitioner or Mr. Mischel for tax pertaining to a taxable

year(s) prior to the taxable year in issue.   The "Arizona tax

based on fraudulent IRS information" apparently relates to what

petitioner regards as a fraudulent assessment or claim made by

the Arizona Department of Revenue against petitioner or Mr.
                               - 6 -

Mischel for tax pertaining to the taxable year 1986 "based on

fraudulent information furnished by respondent".

     The entry for "tax withheld" in the amount of $303,114.25

apparently relates principally to what petitioner believes was

the fraudulent income amount for the taxable year 1986 that was

furnished by respondent to the Arizona Department of Revenue and

that led to the "Arizona tax based on fraudulent IRS information"

described above.

     The entry for "estimated tax payment" in the amount of

$602.50 represents the alleged out-of-pocket cost incurred by

petitioner and Mr. Mischel in traveling to respondent's service

center in Ogden, Utah, in February 1992 in order to review their

tax records for prior years.

     The entry for "tax informant fee" in the amount of $47,000

represents 25 percent of $188,000.     This "fee" was claimed by

petitioner on the basis that she and Mr. Mischel exposed "the

fraudulent IRS claim" described above.

     Respondent did not process the Form 1040A as an income tax

return.   Rather, respondent treated it as a frivolous return and

assessed the frivolous return penalty under section 6702 against

petitioner in the amount of $500.

D. Petitioner's Form 1040X

     At trial, petitioner tendered to the Court a Form 1040X

(Amended U.S. Individual Income Tax Return) for 1992 (the Form

1040X), which mirrored the Form 1040A, except for the following:
                                - 7 -

(1) The Form 1040X was signed by both petitioner and Mr. Mischel;

(2) the Form 1040X claimed one additional exemption (for Mr.

Mischel); and (3) the Form 1040X claimed the standard deduction

in an amount appropriate to a joint return.   Petitioner never

filed the Form 1040X with respondent.3

E. Respondent's Determination

     By notice of deficiency issued August 25, 1995, respondent

determined that petitioner received income from wages in the

total amount of $19,253 in 1992.   Respondent also determined that

petitioner did not file an income tax return for 1992 and is

therefore liable for the addition to tax under section

6651(a)(1).

     In determining the amount of the deficiency in income tax,

respondent: (1) Treated petitioner as married; (2) allowed

petitioner the standard deduction in an amount appropriate to a

married person filing separately; (3) applied the tax rates

applicable to that filing status; (4) allowed petitioner an

exemption for herself; and (5) did not allow any dependency

exemptions or the earned income credit.   Further, in determining

the amount of the deficiency, respondent did not make any

allowance for the community property laws of the State of

Arizona.

     3
          At trial, Mr. Mischel testified that "we do not regard
the IRS as having any jurisdiction over [petitioner's] 1992 taxes
at this particular time, until the Court releases the
jurisdiction back to the IRS."
                                 - 8 -

F. Petitioner's Contentions

     Petitioner admits that her wages are taxable.    However,

petitioner contends that she reported her wages on the Form

1040A, which she further contends is a valid income tax return.

In the alternative, petitioner contends that she should not be

held liable for an addition to tax under section 6651(a)(1)

because the frivolous return penalty under section 6702 has

already been assessed against her.

     Petitioner also contends:    (1) Her tax liability should be

computed by reference to the rates applicable to married

individuals filing jointly; (2) she is entitled to the standard

deduction in an amount appropriate to that filing status; (3) she

is entitled to a total of 5 exemptions, 3 for her children and

one each for herself and Mr. Mischel; (4) she is entitled to the

earned income credit; and (5) she is entitled to a refund in the

amount claimed on the Form 1040A.


                               OPINION

Issue (1):    Community Property Split

     We begin with an issue not raised by the parties but which

we think must be addressed as a fundamental matter; i.e., whether

respondent may disregard community property laws in determining a

deficiency.    In this regard, we recall that respondent did not

make any allowance for the community property laws of the State
                               - 9 -

of Arizona in determining the deficiency in income tax against

petitioner.

     Section 66(b) authorizes the Commissioner to disallow the

benefits of any community property law to a taxpayer with respect

to any income if (1) the taxpayer acted as if solely entitled to

such income and (2) the taxpayer failed to notify the taxpayer's

spouse (before the due date for filing the return for the taxable

year in which the income was earned) of the nature and amount of

such income.

     At trial, respondent was unable to offer any persuasive

reason why respondent was authorized to disregard the community

property laws of the State of Arizona.   Petitioner did not act as

if she were solely entitled to her wage income, and she did not

fail to notify Mr. Mischel of such income.   Indeed, petitioner's

wages provided the support for petitioner and her family, and

petitioner's wages were part of the computation on the Form

1040A, which was prepared by (or at the direction of) Mr.

Mischel.

     Arizona law provides that the wages of a spouse represent

community property and that each spouse has an equal one-half

interest in those earnings.   Ariz. Rev. Stat. Ann. sec. 25-211

(West 1976); Goodell v. Koch, 282 U.S. 118 (1930).   Accordingly,

each spouse must report one-half of such income when a separate

income tax return is filed.   United States v. Mitchell, 403 U.S.

190, 198 (1971).
                              - 10 -

     We have found as a fact that petitioner was married to Mr.

Mischel throughout 1992 and lived with him during the year.        This

finding, which is based on the evidence adduced at trial, is

supported by respondent's determination, made in the notice of

deficiency, regarding petitioner's marital status in 1992.

     In view of the foregoing, we hold that petitioner is taxable

on only one-half of the wages received from Sandia and Show Low

in 1992; i.e., one-half of $19,253 or $9,626.50, as reflected in

the computation infra on p. 12.      See Schramm v. Commissioner,

T.C. Memo. 1991-523, affd. without published opinion 988 F.2d 121

(9th Cir. 1993).

Issue (2):   Petitioner's Filing Status

     On the Form 1040A, petitioner claimed head-of-household

filing status; on the Form 1040X, petitioner claimed that she was

entitled to file as a married individual filing jointly.      In

contrast, respondent determined that petitioner must file as a

married individual filing separately.     We agree with respondent.

     Petitioner does not qualify as a head-of-household because

petitioner was married to Mr. Mischel throughout 1992 and lived

with him during the year.   Section 2(b)(1) requires, inter alia,

that a "head of household" not be married at the close of his or

her taxable year.   Cf. sec. 2(c).

     Petitioner does not qualify as a married individual filing

jointly for the simple reason that petitioner did not file a

joint return with Mr. Mischel.    See secs. 1(a), 6013; see
                              - 11 -

Phillips v. Commissioner, 86 T.C. 433, 441 n.7 (1986), affd. in

part and revd. in part on other issues 851 F.2d 1492 (D.C. Cir.

1988).

     In view of the foregoing, we sustain respondent's

determination that petitioner's tax liability must be computed by

reference to the rates applicable to married individuals filing

separately and that petitioner is only entitled to a standard

deduction in the amount applicable to that filing status.

Issue (3): Claimed Dependency Exemption Deductions for
Petitioner's Children

     Respondent does not contend that, as a matter of law,

petitioner is not entitled to claim her children as dependents.

Rather, respondent contends that petitioner failed to

demonstrate, during the examination stage of this case, "whether

or not these dependents were truly under her care and entitled to

dependent exemption."

     The record demonstrates, and we have found as a fact, that

petitioner provided the sole support for herself and her family

in 1992.   The record also demonstrates that Andre, Daphne, and

Melody resided with petitioner (and Mr. Mischel) in 1992, except

for that part of the year when Daphne or Melody may have been

away in college.   Under these circumstances, and in view of Mr.

Mischel's lack of financial resources, we hold that petitioner is

entitled to dependency exemption deductions for her children.
                                - 12 -

Issue (4):    Additional Exemption for Mr. Mischel

     If a joint return is not filed, an exemption for a

taxpayer's spouse is allowable under section 151(b) only if the

spouse has no gross income and is not the dependent of another

taxpayer.     For the reasons discussed in issue (6) infra, the

issue regarding the exemption for Mr. Mischel is moot.

Issue (5):     Earned Income Credit

     As relevant herein, section 32(d) provides that a married

individual is entitled to the earned income credit only if a

joint return is filed.     Because petitioner did not file a joint

return, she is not entitled to an earned income credit.

Issue (6):     Addition to Tax Under Section 6651(a)(1)

     Section 6651(a)(1) imposes an addition to tax if a taxpayer

fails to file a timely return, unless the taxpayer's failure is

due to reasonable cause and not due to willful neglect.    The

addition is based on the amount required to be shown as tax on

the return.

     Petitioner is not liable for the addition to tax under

section 6651(a)(1) because the amount required to be shown as tax

on her return was zero.     The following calculation shows why this

is true:

             Income                        $9,626.50
             Less: standard deduction      -3,000.00
                                           $6,626.50
             Less: personal exemption      -2,300.00
                                           $4,326.50
             Less: dependency exemptions   -6,900.00
             Taxable income                    -0-

             Tax                               -0-
                                - 13 -

Issue (7):     Petitioner's Claim for Overpayment

     Based on the foregoing calculation, and recalling that $20

was withheld from petitioner's wages by Show Low, we hold that

petitioner overpaid her tax by $20.4

     We reject petitioner's claim for an overpayment in an amount

greater than the amount of her withholding.     The full $352,100.75

claim made in the Form 1040A is whimsical, if not capricious.

Negative gross income is not a concept that the Federal tax law

recognizes, and the amounts claimed by petitioner as "tax

withheld", "estimated tax payment", and "tax informant fee" are

simply not payments of tax that could give rise to an

overpayment.

Issue (8):   Penalty Under Section 6673

     Respondent has not moved for the imposition of a penalty

under section 6673.     Nevertheless, we think it appropriate to

consider the matter.     See Schramm v. Commissioner, T.C. Memo.

1991-523, affd. without published opinion 988 F.2d 121 (9th Cir.

1993).

     As relevant herein, section 6673(a)(1) authorizes the Tax

Court to require a taxpayer to pay to the United States a penalty

not in excess of $25,000 whenever it appears that proceedings

have been instituted or maintained by the taxpayer primarily for




     4
          Whether or not the Form 1040 constitutes a valid
return, an issue we do not and need not reach, we think that it
constitutes a valid claim for refund. Cf. Commissioner v. Lundy,
516 U.S.     116 S.Ct. 647 (1996).
                              - 14 -

delay or that the taxpayer's position in such proceeding is

frivolous or groundless.

     Although it might seem odd to consider imposing a penalty

under section 6673 when we have not sustained respondent's

determination regarding the deficiency and addition to tax, we

note the following:   First, petitioner prevailed in this case

only because the Court, not petitioner, raised the community

property issue.   Second, petitioner's interest in this case has

been principally, if not exclusively, to pursue matters

pertaining to prior taxable years that have absolutely no

relevance to the taxable year in issue.   The Form 1040A submitted

by petitioner reflects a fanciful approach to her Federal income

tax responsibilities, and the contentions made in support of that

form are without merit.

     Notwithstanding the foregoing, we have decided not to

exercise our discretion to impose a penalty under section 6673,

in part because of our concern that petitioner may be acting at

the misguided direction of Mr. Mischel.   Nevertheless, petitioner

should understand that persistence in this Court in pursuing the

overpayment claimed in the Form 1040A in a subsequent case may

result in the imposition of a penalty under section 6673.
                        - 15 -



To give effect to the foregoing,

                                   A decision for petitioner

                              will be entered that there

                              is no deficiency and no

                              addition to tax under section

                              6651(a)(1), and that there is

                              an overpayment in the amount

                              of $20, for the taxable year

                              1992.
