                   T.C. Summary Opinion 2006-151



                      UNITED STATES TAX COURT



          J. MCLEAN AND JUDY A. DURFEY, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No.   22715-04S.         Filed September 14, 2006.



     J. McLean and Judy A. Durfey, pro sese.

     R. Craig Schneider, for respondent.



     DAWSON, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.   The decision to be entered is not

reviewable by any other court, and this opinion should not be

cited as authority.   Unless otherwise indicated, subsequent

section references are to the Internal Revenue Code in effect for

the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.
                                - 2 -

     Respondent determined a deficiency of $3,643 in petitioners’

Federal income tax for 2002.    The issue for decision is whether

J. McLean Durfey (petitioner) received unreported income in the

year 2002 from wages, interest, a State income tax refund, the

taxable amount of a pension, and the taxable amount of Social

Security benefits.1

                             Background

     Some of the facts have been stipulated and are so found.

Petitioners resided in American Fork, Utah, when they filed their

petition.

     Petitioner is an educator.    He and his wife filed a timely

joint Federal income tax return for 2002 in which they reported

wages of $52,399, a farming loss of $11,028, and adjusted gross

income of $41,371.    Third parties reported to petitioner and

respondent the following income paid to petitioner in 2002 that

was not reported on petitioners’ Federal income tax return for

that year:




     1
      The adjustment of $1,495 for medical deductions claimed on
Schedule A, Itemized Deductions, made by respondent in the notice
of deficiency is computational based upon an increase in
petitioners’ adjusted gross income. Likewise, the adjustment of
$296 to Schedule A miscellaneous deductions is computational
based upon petitioners’ adjusted gross income.
                                    - 3 -

             Payor                   Form           Type of Income       Amount

 Alpine School District           W-2          Wages                       $174
 New Mexico Educators FCU         1099-INT     Interest                      40
 State of New Mexico              1099-G       State income tax refund    1,029
 New Mexico Educational           1099-R       Pensions, annuities,      13,004
  Retirement Board                              retirement
 Social Security Administration   1099-SSA     Social Security           6,685

     In the notice of deficiency, respondent determined that

petitioner received unreported gross income of $19,929 in 2002,

consisting of the following:

                     Source                     Amount

           Wages                                 $174
           Interest                                40
           State income tax refund              1,029
           Taxable pension                     13,004
           Taxable Social
             Security benefits                  5,682

     Respondent also decreased petitioners’ Schedule A deductions

by $1,791, resulting in a total increase of $21,720 in their

taxable income.

                                  Discussion

     In general, the Commissioner’s determinations set forth in a

notice of deficiency are presumed correct, and the taxpayer bears

the burden of showing that such determinations are in error.

Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).

Section 7491(a)(1) provides that the burden of proof as to

factual matters shifts to the Commissioner under certain limited
                               - 4 -

circumstances.   Petitioners do not fall within these limited

circumstances, and therefore the burden of proof remains with

them.2

     Section 61(a) provides that, except as otherwise provided in

subtitle A of the Internal Revenue Code, gross income means “all

income from whatever source derived”.   Petitioner received and

failed to report on his joint income tax return for 2002 the

amounts of additional gross income respondent determined in the

notice of deficiency.

     Petitioner’s contention is that he should not be held liable

for tax on the additional income he received in 2002 because

respondent failed to meet certain deadlines he set for answering

his correspondence during the time his tax return was being

audited but before the notice of deficiency was issued.   At the

trial he testified that “the reason that I gave for filing the

petition was that they were missing deadlines”.   He asserted that

“if I’m going to be held accountable for meeting deadlines, then

the IRS ought to also”.

     Whether respondent met petitioner’s deadlines is irrelevant.

In these circumstances we do not look behind the notice of




         2
      Because the deficiency determined by respondent is
predicated on income reported on information returns by third
parties, we note that sec. 6201(d) is not applicable because
petitioner does not dispute the items of income.
                               - 5 -

deficiency in examining respondent’s actions.   Greenberg’s

Express, Inc. v. Commissioner, 62 T.C. 324, 327-328 (1974).

     It is clear that petitioner, an intelligent person, knew he

had omitted income when he filed his Federal income tax return

for 2002.   When asked by the Court if he had received the

additional income respondent determined in the notice of

deficiency, petitioner answered: “Yes, I did.   I received all

that”.

     Accordingly, on the basis of the record in this case, we

sustain respondent’s determinations in all respects.   We hold

that petitioners are liable for the entire amount of the Federal

income tax deficiency for 2002.



                                         Decision will be entered

                                    for respondent.
