                          T.C. Memo. 1996-545



                        UNITED STATES TAX COURT


                     CRESTON SWAIM, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 20684-94.                Filed December 17, 1996.


        Creston Swaim, pro se.

        Michael D. Zima, for respondent.


                MEMORANDUM FINDINGS OF FACT AND OPINION

        DEAN, Special Trial Judge:   This case was assigned pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1

        Respondent determined a deficiency in petitioner's 1992

Federal income tax in the amount of $2,850 and additions to tax


        1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure. Dollar amounts are rounded to the nearest dollar.
                                  -2-

under section 6651(a) in the amount of $674 and under section

6654(a) in the amount of $91.

     The issues for decision are:       (1) Whether certain payments

received by petitioner during 1992 are includable in his gross

income; (2) whether petitioner is liable for additional tax on

early retirement distributions under section 72(t); and (3)

whether petitioner is liable for additions to tax under sections

6651 and 6654.

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.      Petitioner resided in

Altamonte Springs, Florida, at the time he filed his petition.

                         FINDINGS OF FACT

     For the 1990 and 1991 tax years, petitioner filed Forms 1040

which he signed without altering the jurat.      For the 1992 tax

year, however, petitioner filed a Form 1040NR (U.S. Nonresident

Alien Income Tax Return) dated June 15, 1993, which was received

by respondent on June 22, 1993.    On this return petitioner

reported that he was a citizen of the country of "Florida,

America".   Petitioner claimed "other single nonresident alien"

filing status.   After reported estimated tax payments, Federal

income tax withheld, and excess Social Security tax withheld,

petitioner claimed a tax refund of $9,707.      The only income

petitioner reported was $7,537 of unemployment compensation.

Petitioner altered the jurat on the 1040NR form by adding the
                                 -3-

phrase "With express reservation of all my rights in law, equity

and all natures of law".    Respondent considered this return to be

frivolous, and it was not processed.

  Respondent issued a notice of deficiency to petitioner based on

information returns received from several payors indicating

payments to petitioner during 1992 as follows:

                                Type of
Payor                           Payment             Amount
Office Equipment Exchange       Wages               $1,586
Florida Department of Labor     Unemployment         5,962
  & Employment Security           Compensation
Nationsbank of Texas            IRA Distribution     8,408
Kemper Clearing Corp.           IRA Distribution     1,000
A.G. Edwards & Sons             Dividends                2
A.G. Edwards & Sons             Stock Sale Proceeds 1,466
A.G. Edwards & Sons             Stock Sale Proceeds    198
UCF Federal Credit Union        Interest                22

     Respondent determined petitioner's tax under section 1(c)

for unmarried individuals.    The deficiency in income tax includes

the 10-percent additional tax imposed by section 72(t) on early

distributions from qualified retirement plans.    Respondent also

determined that petitioner was liable for additions to tax under

section 6651(a)(1) for failure to file a timely return and under

section 6654(a) for failure to make estimated tax payments.

                               OPINION

     Respondent's determinations are presumed correct, and

petitioner bears the burden of proving otherwise.    Rule 142(a);

Welch v. Helvering, 290 U.S. 111, 115 (1933).

1.   Gross Income

     Section 61(a) defines gross income as "all income from

whatever source derived".    The burden is on petitioner to
                                -4-

demonstrate that the payment in question falls into a specific

statutory exclusion.   Commissioner v. Glenshaw Glass Co., 348

U.S. 426, 429-431 (1955).

     Petitioner concedes that he received the payments in

question in the amounts determined by respondent.2    Petitioner

does not contend that any of the payments fall into a specific

statutory exclusion.   Consequently, we sustain respondent's

determination that the amounts in question are includable in

petitioner's gross income.

2.   Section 72(t) Additional Tax

     Section 72(t)(1) imposes an additional tax equal to 10

percent of the portion of an early distribution from a "qualified

retirement plan" that is includable in the taxpayer's gross

income.   An individual retirement account (IRA) is included in

the definition of a "qualified retirement plan".     Secs. 72(t)(1),

4974(c)(4).

     Section 72(t)(2) provides for certain exceptions to the

general rule contained in paragraph (1).   One important exception

provides that the 10-percent additional tax does not apply if the

distribution was made on or after the date that the taxpayer

attained age 59 1/2.   Sec. 72(t)(2)(A)(i).



     2
      In the stipulation of facts, petitioner concedes that he
received the payments in question, but some of the amounts
stipulated are slightly greater (by less than one dollar) than
the amounts determined in the notice of deficiency. To the
extent the amounts in the stipulation of facts exceed the amounts
in the notice of deficiency, we deem respondent to have conceded
the excess.
                                  -5-

     There is no dispute that petitioner received IRA

distributions in 1992 in the amount of $9,408, or that that

amount was includable in petitioner's gross income.   Petitioner

was born on August 10, 1958, and clearly had not attained the age

of 59 1/2 at the time of the distributions.   Petitioner does not

claim to fall within any of the other statutory exceptions found

in section 72(t)(2).   Consequently, we hold that petitioner is

liable for the 10-percent additional tax pursuant to section

72(t) as determined by respondent.

3.   Section 6651(a)(1) Failure To File a Timely Return

     Section 6651(a)(1) provides for an addition to tax of 5

percent of the tax required to be shown on the return for each

month or fraction thereof for which there is a failure to file,

not to exceed 25 percent.   The addition to tax for failure to

file a timely return 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).

     Petitioner's 1992 Federal income tax return was due on

April 15, 1993.   Sec. 6072(a).   Respondent received petitioner's

Form 1040NR (which is dated June 15, 1993) on June 22, 1993.

However, petitioner introduced no evidence or testimony to

establish, contrary to respondent's determination, that such

document constitutes a "return" for purposes of section

6651(a)(1).   See Beard v. Commissioner, 82 T.C. 766, 777 (1984),

affd. per curiam 793 F.2d 139 (6th Cir. 1986).   For example,

there is no evidence here to show that there was "an honest and
                                  -6-

reasonable attempt to satisfy the requirements of the tax law".

Id.   Accordingly, we find that petitioner's purported return does

not constitute a return for purposes of section 6651.      Petitioner

offered no evidence to show that his failure to file a timely

return was due to reasonable cause and not willful neglect, and

we therefore sustain respondent's imposition of the addition to

tax under section 6651(a)(1).

4.    Section 6654 Failure To Pay Estimated Tax

      Where payments of tax, either through withholding or by

making estimated quarterly tax payments during the course of the

year, do not equal the amount required under the statute,

imposition of the addition to tax under section 6654 is

automatic, unless the taxpayer shows that one of the statutory

exceptions applies.    Niedringhaus v. Commissioner, 99 T.C. 202,

222 (1992); Grosshandler v. Commissioner, 75 T.C. 1, 20-21

(1980).    Petitioner bears the burden to show qualification for

such exception.    Habersham-Bey v. Commissioner, 78 T.C. 304, 319-

320 (1982).    Petitioner has not sustained his burden; therefore,

we hold that he is liable for the addition to tax under section

6654 for the 1992 taxable year.

      To reflect the foregoing,

                                             Decision will be entered

                                        for respondent.
