                       T.C. Memo. 1999-418



                     UNITED STATES TAX COURT


               DAVID ANTHONY AVERY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 9970-98.                 Filed December 23, 1999.


     David Anthony Avery, pro se.

     Jeanne Gramling, for respondent.


                       MEMORANDUM OPINION


     POWELL, Special Trial Judge:   Respondent determined a

deficiency in petitioner’s 1994 Federal income tax and an

accuracy-related penalty under section 6662(a)1 in the respective

amounts of $4,940 and $988.



     1
         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.
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     The issues are whether provisions of the Internal Revenue

Code violate the Thirteenth Amendment to the Constitution and

whether petitioner is liable for the penalty under section

6662(a).

     The facts may be summarized as follows.     Petitioner resided

in Asheboro, North Carolina, at the time the petition was filed.

In the notice of deficiency respondent determined that petitioner

had unreported nonemployee compensation in the amount of $1,040

and disallowed itemized deductions in the amount of $20,750.    At

trial, petitioner offered no evidence.     Rather, he filed a motion

for summary judgment arguing that the Internal Revenue Code

violates the Thirteenth Amendment.     If petitioner’s

constitutional argument fails, the decision will be entered for

respondent because petitioner has the burden of establishing that

respondent’s determination is incorrect.     See Rule 142(a).

     The first section of the Thirteenth Amendment, in relevant

part, states:   “Neither slavery nor involuntary servitude, except

as a punishment for crime whereof the party shall have been duly

convicted, shall exist within the United States, or any place

subject to their jurisdiction.”

     The Court of Appeals for the Tenth Circuit has noted that

“if the requirements of the tax laws were to be classed as

servitude, they would not be the kind of involuntary servitude

referred to in the Thirteenth Amendment.”     Porth v. Brodrick, 214
                               - 3 -

F.2d 925, 926 (10th Cir. 1954); see also Peeples v. Commissioner,

T.C. Memo. 1986-584, affd. without published opinion 829 F.2d

1120 (4th Cir. 1987); Lyon v. Commissioner, T.C. Memo. 1978-347;

Vernaccini v. Commissioner, T.C. Memo. 1974-66.    We shall deny

petitioner’s motion for summary judgment and sustain respondent's

determination as to the deficiency.

     Respondent also determined that petitioner is liable for an

accuracy-related penalty under section 6662(a) for negligence.

Section 6662(a) provides that "there shall be added to the tax an

amount equal to 20 percent of the portion of the underpayment to

which this section applies."   Section 6662 applies to "the

portion of any underpayment which is attributable to", inter

alia, negligence or disregard of the rules or regulations.    Sec.

6662(b)(1).   Negligence "includes any failure to make a

reasonable attempt to comply with the provisions * * * [of the

Internal Revenue Code], and the term 'disregard' includes any

careless, reckless, or intentional disregard."    Sec. 6662(c).

     Petitioner apparently argues that the Internal Revenue Code

violates the Thirteenth Amendment and that this argument “has

never been presented to the Court.”    He, therefore, contends that

he is not liable for the negligence penalty even if we were to

reject this argument.   As is obvious from the cases cited supra,
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this Court and others have considered petitioner’s argument and

rejected it.   Respondent’s determination of the penalty under

section 6662(a) is sustained.

                                            An appropriate order

                                        and decision will be entered.
