                         T.C. Memo. 2001-283



                      UNITED STATES TAX COURT



            WILLIAM RICHARD BAKER, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5596-99.                      Filed October 12, 2001.



     William Richard Baker, Jr., pro se.

     Edsel Ford Holman, Jr., for respondent.



                         MEMORANDUM OPINION


     RUWE, Judge:   This matter is before this Court on

respondent’s motion for partial summary judgment, which was filed

pursuant to Rule 121.1   The issues for decision are whether


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable years in
issue, and all Rule references are to the Tax Court Rules of
                                                   (continued...)
                                - 2 -

petitioner’s net earnings from his law practice are subject to

self-employment taxes and whether payment of those taxes is

voluntary.    At the time the petition in this case was filed,

petitioner resided in Knoxville, Tennessee.

     Petitioner did not file timely a Form 1040, U.S. Individual

Income Tax Return, for taxable years 1995 and 1996.     On December

22, 1998, respondent issued a notice of deficiency in which he

determined the following deficiencies and additions to tax:

                                       Additions to Tax
     Year        Deficiency     Sec. 6651(a)(1)     Sec. 6654

     1995         $68,735         $17,183.75          $3,727.01
     1996          12,245           3,061.25             651.74

Some of the deficiencies were attributable to petitioner’s

failure to report or otherwise pay self-employment taxes.

     On March 23, 1999, petitioner filed a timely petition to

this Court.   On July 7, 2000, petitioner executed Federal income

tax returns for taxable years 1995 and 1996.     On the Schedules C,

Profit or Loss from Business, attached to those returns,

petitioner reported net income of $116,814 for taxable year 1995

and $41,111 for taxable year 1996.      The Schedules C showed that

the income was derived from Mr. Baker’s business or profession as

an “Attorney”.   On the Schedules SE, Self-Employment Tax,




     1
      (...continued)
Practice and Procedure.
                                - 3 -

petitioner calculated his self-employment tax liability to be

$10,717 for taxable year 1995 and $5,809 for taxable year 1996.

     On July 11, 2000, respondent issued interrogatories to

petitioner in which he asked:    “In your petition to the Tax Court

you indicate that the respondent’s self-employment tax

computation is erroneous.    Please describe in detail why the

respondent’s self-employment tax computation is incorrect and

what you believe the correct self-employment computation to be.”

Petitioner replied:   “See tax returns--Respondent asserts also

that self-employment taxes are voluntary and Respondent does not

volunteer SE taxes for 95 or 96.”

     Respondent contends that the self-employment tax is not

voluntary and that petitioner is liable for self-employment tax

on the net earnings from his law practice as reported on

petitioner’s belatedly filed 1995 and 1996 Federal income tax

returns.

     Under Rule 121(a), either party may move for summary

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

motion for partial summary judgment will be granted where there

is no genuine issue as to any material fact relevant to the

particular issue involved.    Rule 121(b); Sundstrand Corp. v.

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

Cir. 1994).   The burden is on the moving party, respondent, to

prove the nonexistence of a genuine issue as to any material fact
                                - 4 -

and that he is entitled to judgment as a matter of law.       FPL

Group, Inc. & Subs. v. Commissioner, 116 T.C. 73, 74-75 (2001).

In all cases, the evidence must be viewed in the light most

favorable to the nonmoving party, petitioner.    Blanton v.

Commissioner, 94 T.C. 491, 494 (1990).

     Petitioner has failed to respond to respondent’s motion for

partial summary judgment and this Court’s order dated August 24,

2001, which states:    “That petitioner shall, on or before

September 24, 2001, file a response to the above motion for

partial summary judgment.”    When a motion for summary judgment is

made, the nonmoving party cannot rely upon the allegations or

denials in its pleading but must demonstrate with specific facts

that there is a genuine issue for trial.    King v. Commissioner,

87 T.C. 1213, 1217 (1986); Shepherd v. Commissioner, T.C. Memo.

1997-555.   Under Rule 121(d), if the adverse party, petitioner

herein, does not respond to the motion for summary judgment, then

this Court may enter a decision where appropriate against that

party.   King v. Commissioner, supra at 1217; Shepherd v.

Commissioner, supra.    We could enter a decision against

petitioner without elaboration; however, we shall address the

contentions petitioner raised in his petition and in the

interrogatories.

     In his petition, petitioner claimed that the self-employment

tax deficiency was erroneously included in the notice of
                                  - 5 -

deficiency issued by respondent.     In response to interrogatories

issued by respondent, petitioner argued that self-employment

taxes were voluntary and that he was, therefore, not required to

make payment for those taxes.

     It is well established that the obligation to pay self-

employment taxes is mandatory so long as the requirements of

section 1401 are met.   Eanes v. Commissioner, T.C. Memo. 2000-

252; see also United States v. Lee, 455 U.S. 252 (1982); Crouch

v. United States, 665 F. Supp. 813 (N.D. Cal. 1987); Tyng v.

Commissioner, T.C. Memo. 1985-399, affd. without published

opinion 809 F.2d 930 (D.C. Cir. 1987). In Eanes, this Court

rejected a taxpayer’s argument that the self-employment tax was a

voluntary “contribution”.   Id.     We also stated:

     Self-employment tax is assessed and collected as part
     of the income tax, must be included in computing any
     income tax deficiency or overpayment for the applicable
     tax period, and must be taken into account for
     estimated tax purposes. See sec. 1.1401-1(a), Income
     Tax Regs.

Petitioner has a mandatory obligation to pay self-employment

taxes if the requirements of section 1401 are met.     A genuine

issue of material fact is not presented with respect to the

voluntariness of the self-employment tax.

     Section 1401(a) and (b) imposes a percentage tax on self-

employment income of every individual for the benefit of old age,

survivors, disability insurance, and hospital insurance.     Self-

employment income is defined as:     “the net earnings from self-
                                 - 6 -

employment derived by an individual * * * during any taxable

year”.   Sec. 1402(b).   Net earnings from self-employment is then

defined as:   “the gross income derived by an individual from any

trade or business carried on by such individual, less the

deductions allowed by this subtitle which are attributable to

such trade or business”.   Sec. 1402(a); Eanes v. Commissioner,

supra.

     In his motion for partial summary judgment, respondent takes

the position that petitioner is liable for self-employment tax on

petitioner’s net profits from his law practice.   On petitioner’s

Forms 1040 for taxable years 1995 and 1996, he reported that net

profits were derived from his business or profession as an

“Attorney”.   Petitioner’s income tax returns reported net profits

from self-employment of $116,814 for taxable year 1995 and of

$41,111 for taxable year 1996.    On Schedules SE of those returns,

petitioner reported a self-employment tax due of $10,717 for

taxable year 1995 and of $5,809 for taxable year 1996.

Respondent has agreed that those calculations correctly reflect

petitioner’s self-employment tax liability for the taxable years

at issue.

     On the basis of petitioner’s failure to respond to

respondent’s motion for partial summary judgment and on the basis

of the circumstances above, we find that a genuine issue of

material fact does not exist regarding petitioner’s liability for
                               - 7 -

the self-employment taxes reported by petitioner on his 1995 and

1996 tax returns.   Accordingly,



                               An appropriate order will be issued

                          granting respondent’s motion for partial

                          summary judgment.
