                  T.C. Summary Opinion 2004-108



                     UNITED STATES TAX COURT



                HUGH POWELL ARVIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6892-03S.              Filed August 5, 2004.


     Hugh Powell Arvin, pro se.

     D. Sean McMahon, for respondent.



     DEAN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the years at issue.    The decision to

be entered is not reviewable by any other court, and this opinion

should not be cited as authority.
                                 - 2 -

       In four separate notices of deficiency, respondent

determined deficiencies in petitioner's Federal income taxes and

additions to tax as follows:

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

1997          $3,839            $488.25               –-
1998           4,674             569.50               –-
1999           3,971             974.25            $188.20
2000           5,319           1,329.75             284.10

       The issues for decision are:   (1) Whether petitioner had

unreported income in the amounts respondent determined, (2)

whether petitioner is liable for additions to tax under section

6651(a)(1) for failure to file timely Federal income tax returns

for taxable years 1997 through 2000, and (3) whether petitioner

is liable for additions to tax under section 6654(a) for failure

to pay estimated income taxes.

                             Background

       The stipulation of facts and the exhibits received into

evidence are incorporated herein by reference.     Petitioner

resided in Hopkinton, Massachusetts, at the time the petition was

filed.

       Respondent obtained copies of Forms W-2, Wage and Tax

Statement, issued by Non Stop Sales & Service, Inc., which show

that petitioner was paid $9,720, $9,940, $3,375, and $2,025 for

tax years 1997, 1998, 1999, and 2000, respectively.     Petitioner

stipulated that he received $19,671 and $16,130 from Electronic
                                - 3 -

Designs, Inc., during tax years 1997 and 1998.    Additionally,

respondent obtained copies of Forms W-2 issued by the

International, Inc., which show that petitioner was paid $5,478,

$18,965, and $23,812 for tax years 1998, 1999, and 2000,

respectively.    According to Forms 1099-G, Statement for

Recipients of Certain Government Payments, petitioner also

received unemployment compensation from the Commonwealth of

Massachusetts during the 1998, 1999, and 2000 tax years of

$1,212, $3,257, and $521, respectively.

     On or about August 1, 1998, petitioner submitted to

respondent a Form 1040, U.S. Individual Income Tax Return, for

1997.    Petitioner did not attach any Forms W-2 to the Form 1040.

Petitioner entered zeros on all lines of the income portion of

his Form 1040, specifically including those lines that report

wages, dividends, total income, and adjusted gross income.    He

also indicated that his taxable income and tax were zero.

Petitioner claimed a refund of $1,886, the full amount of Federal

income tax that had been withheld from his wages by his

employers.1

     Petitioner submitted to respondent a Form 1040 for 1998.

Petitioner did not attach to the return Forms W-2 or 1099-G.

Petitioner entered zeros on all lines of the income portion of


     1
      The actual amount withheld by petitioner's employers was
$1,886.52.
                                - 4 -

the Form 1040, including those lines that report wages,

dividends, total income, and adjusted gross income.    He also

indicated his taxable income and tax to be zero.    Petitioner

claimed a refund of $2,397.09, which was the amount of Federal

income tax that had been withheld from his wages by his

employers.

       Petitioner attached to his Form 1040 for each of the 1997

and 1998 years a two-page typewritten statement that lists

numerous reasons why he believes that he is not required to pay

income tax.

       Petitioner submitted to respondent a five-page typewritten

document which purports to be a legal notice that he is a

nontaxpayer (legal notice) for 1999 and 2000.   The legal notice

contained numerous statements that show petitioner's continuing

belief that he is not required to file a return or pay income

tax.

       Petitioner does not dispute receiving the amounts of income

respondent determined in the notices of deficiency.   Petitioner

filed a petition with this Court alleging that respondent erred

in determining his deficiencies and his taxable income and

demanding the case be transferred to respondent's Appeals Office.
                               - 5 -

     Respondent sent a letter to petitioner scheduling an Appeals

Office conference.   Petitioner did not appear at the conference

and failed to contact the officer before the date of the

conference.

                            Discussion

     Section 7491(a)(1)2 provides that the burden of proof may,

under certain conditions, shift to the Commissioner.   Because

petitioner failed to meet the requirements of section 7491(a)(2),

the burden of proof does not shift to respondent.

     Petitioner's objections to respondent's adjustments are

those typical of so-called tax protesters.   In his trial

memorandum, petitioner relies on Brushaber v. Union Pac. R.R.,

240 U.S. 1, 19 (1916), to support his propositions that the

Sixteenth Amendment did not give the Federal Government any new

taxing powers and that income tax is actually an excise tax,

which can only be assessed against those who are licensed or

incorporated.   However, petitioner's argument is baseless.

     In Brushaber, the Court found the 1913 income tax law
     to be constitutional. The Court also noted that in
     Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601
     (1895) it had previously found the taxing of income
     from professions, trades, employments or vocations to
     be constitutional in the form of an excise tax. In
     light of the [S]ixteenth [A]mendment, however, all


     2
      Sec. 7491 is effective with respect to court proceedings
arising in connection with examinations by the Commissioner
commencing after July 22, 1998, the date of its enactment by sec.
3001(a) of the Internal Revenue Service Restructuring and Reform
Act of 1998, Pub. L. 105-206, 112 Stat. 726.
                              - 6 -

     taxation of income, "from whatever source derived," was
     found to be constitutional in Brushaber. [Martin v.
     Commissioner, 756 F.2d 38, 40 (6th Cir. 1985), affg.
     T.C. Memo. 1983-473.]

     On the basis of well-established law, the Court finds that

petitioner's position is frivolous and groundless.    The Court

sees no need to further address petitioner's arguments.    See

Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984).

Additions to Tax Under Sections 6651(a)(1) and 6654

     Respondent determined additions to tax under section

6651(a)(1) for petitioner's failure to timely file Federal income

tax returns for 1997, 1998, 1999, and 2000.   The addition to tax

for failure to file a return timely will be imposed if a return

is not timely filed unless the taxpayer shows that the delay was

due to reasonable cause and not willful neglect.   Sec.

6651(a)(1).

     Although petitioner submitted Forms 1040 for tax years 1997

and 1998, respondent does not recognize them as returns because

petitioner stated that he had zero gross income, owed zero tax,

and requested refunds of the amounts withheld.   This Court has

previously held that "zero returns" are not recognized as returns

that fulfill a taxpayer's obligation to file.    Hill v.

Commissioner, T.C. Memo. 2003-144; Rayner v. Commissioner, T.C.

Memo. 2002-30, affd. 70 Fed. Appx. 739 (5th Cir. 2003); see also

Rev. Rul. 2004-34, 2004-12 I.R.B. 619.
                               - 7 -

     The documents petitioner submitted for tax years 1999 and

2000 are not recognized by respondent as returns because they do

not constitute Forms 1040 and they fail to provide any

information required by Form 1040, specifically the amount of

petitioner's income for each year.

     None of the documents submitted by petitioner constitute

returns.   Therefore, petitioner has yet to file any returns.

Petitioner has not offered any evidence that his failure to file

is due to reasonable cause and not to willful neglect.

Respondent's determinations that petitioner is liable for the

additions to tax under section 6651(a)(1) are sustained.

     Respondent also determined an addition to tax under section

6654 for petitioner's underpayment of estimated tax for 1999 and

2000.   This addition to tax is mandatory and automatic, subject

to certain exceptions provided by section 6654(e).     Grosshandler

v. Commissioner, 75 T.C. 1 (1980).     Petitioner failed to offer

any evidence that he fits within any of the listed exceptions.

Respondent's determinations that petitioner is liable for section

6654 additions to tax are sustained.

     Petitioner did not introduce any evidence to show that he is

not liable for the income tax deficiencies and additions to tax

under sections 6651(a)(1) and 6654; accordingly, respondent's

determinations for all 4 years are sustained.
                                - 8 -

     We note that section 6673(a)(1) authorizes the Court to

require a taxpayer to pay to the United States a penalty of up to

$25,000 whenever it appears that the proceeding has been

instituted or maintained by the taxpayer primarily for delay or

that the taxpayer's position in such proceedings is frivolous or

groundless.   In this case, we conclude that the position advanced

by petitioner is frivolous and groundless.   Nevertheless,

respondent has not asked for penalties under section 6673 to be

imposed, and we choose not to do so at this time.   We caution

petitioner that such penalties under section 6673 may be imposed

if he continues to advance the same frivolous and groundless

arguments in the future.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the forgoing,


                                              Decision will be

                                         entered for respondent.
