                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 98-60586
                           Summary Calender
                        _____________________

           GERALD J. MARTINEZ; GAYLE R. MARTINEZ,

                                Petitioners-Appellants,

           v.

           COMMISSIONER OF INTERNAL REVENUE,

                                Respondent-Appellee.

_________________________________________________________________

     Appeal from the Decision of the United States Tax Court
                            (19887-95)
_________________________________________________________________

                           October 6, 1999

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.

KING, Chief Judge:*

      Petitioners-Appellants Gerald Martinez and Gayle Martinez,

husband and wife, appeal from a decision of the United States Tax

Court sustaining Respondent-Appellee’s assessment of deficiencies

in, and additions to, Petitioners-Appellants’ federal income tax

for the years 1982 through 1987.   We AFFIRM.



                            I. BACKGROUND

      The Martinezes are Catholics who oppose, on religious


  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
grounds, the payment of taxes that fund abortions and abortion-

related education.    Based on their religious beliefs,    the

Martinezes have failed to file federal income tax returns since

1973.    After an audit, the Commissioner issued notices of

deficiencies in federal income tax, as well as additions to tax,

to each Appellant for the years 1982-1987.

        The Martinezes petitioned the U.S. Tax Court for review of

the Commissioner’s determination on numerous grounds.2      First,

the Martinezes claimed that the Free Exercise Clause exempts them

from paying taxes.    Second, they claimed that the Commissioner

incorrectly determined their unreported income and allowable

deductions.    Third, they contended that the Commissioner

incorrectly assessed civil penalties.      Fourth, the Martinezes

claimed that the Commissioner used the wrong filing status when

computing their tax liability, i.e., “married, filing

separately,” rather than “married, filing jointly.”      Finally, the

Martinezes asserted that the statute of limitations barred the

Commissioner’s assessment of back taxes.

      The Tax Court rejected the Martinezes Free Exercise claim,

citing well-settled precedent that religious objections to the

manner in which federal revenue is spent provide no basis for

resisting the federal income tax.      The Tax Court also rejected

the Martinezes’ contention regarding the calculation of their

income and allowable deductions.       In rejecting this argument, the


  2
     We discuss only the arguments advanced by the Martinezes on
appeal.

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court noted that the Commissioner’s calculations were based on

the Martinezes’ own records, and that they failed to introduce

any evidence to rebut the presumption that the Commissioner’s

calculations were correct. The court also determined that the

Martinezes failed to show that the Commissioner’s imposition of

civil penalties was erroneous.    The court further held that the

Martinezes were not entitled to have their taxes computed on a

“married, filing jointly” basis because they had failed to file

returns for the years at issue.    Finally, the Tax Court

determined that the statute of limitations on assessment actions

had not run because the Martinezes failed to file returns for the

years at issue.

     The Martinezes now appeal the Tax Court’s decision by

reasserting the arguments advanced below.



                            II. DISCUSSION

     We review a decision of the U.S. Tax Court as we would a

decision by the district court.       Street v. Commissioner, 152 F.3d

482, 484 (5th Cir. 1998).   The Tax Court’s determination

regarding the Martinezes’ free exercise claim is a question of

law and is reviewed de novo.     Id.; Estate of McLendon v.

Commissioner, 135 F.3d 1017, 1021 (5th Cir. 1998).      The Tax

Court’s determination that the Martinezes failed to introduce

sufficient evidence to overcome the presumption that the

Commissioner correctly calculated their tax liability is reviewed

for clear error.   Yoon v. Commissioner, 135 F.3d 1007, 1012 (5th


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Cir. 1998); Webb v. Commissioner, 394 F.2d 366, 372 (5th Cir.

1968).

     The Martinezes’ religious-based objection to the manner in

which certain federal funds are spent does not afford them any

basis for refusing to file returns or pay their taxes.    It is

well-established that the federal income tax system does not

violate the Free Exercise Clause of the Constitution.     See

Hernandez v. Commissioner, 490 U.S. 680 (1989); United States v.

Lee, 455 U.S. 252 (1982); United States v. American Friends Serv.

Comm., 419 U.S. 7 (1974); Lull v. Commissioner, 602 F.2d 1166

(4th Cir. 1979), cert. denied, 444 U.S. 1014 (1980); Graves v.

Commissioner, 579 F.2d 392 (6th Cir. 1978), cert. denied, 440

U.S. 946 (1979); Autenrith v. Cullen, 418 F.2d 586 (9th Cir.

1969), cert. denied, 397 U.S. 1036 (1970).   While the Free

Exercise Clause protects a person’s right to hold any religious

belief, it does not give them the right to act in a manner

contrary to the law.   See United States v. Holmes, 614 F.2d 985,

989 (5th Cir. 1980).   The Martinezes’ contention that their

religious convictions exempt them from paying federal income tax

is without merit.

     We agree with the Tax Court that the Martinezes failed to

overcome the presumption in favor of the Commissioner’s

calculations of tax deficiencies for the years 1982-87.    In

determining income the Commissioner must demonstrate a link

between the taxpayer and any unreported income.    See Woodall v.

Commissioner, 964 F.2d 361, 363 (5th Cir. 1992).   The use of the


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taxpayer’s own records satisfies that burden. See id. (finding

that the Commissioner’s reliance upon a “taxpayer’s statement” in

the form of a balance sheet submitted by the taxpayer was

sufficient information with which to calculate taxpayer’s

deficiencies).   The Commissioner’s determination of income

(including any relevant deductions) and calculation of tax is

presumptively correct, and the taxpayer bears the burden of

proving those determinations and calculations incorrect.      See

United States v. Janis, 428 U.S. 433, 440-441 (1976); Helvering

v. Taylor, 293 U.S. 507, 515 (1935); Yoon v. Commissioner, 135

F.3d 1007, 1012 (5th Cir. 1998); Portillo v. Commissioner, 932

F.2d 1128, 1133 (5th Cir. 1991).

     Despite being warned repeatedly by the judge below that they

bore the burden of overcoming the Commissioner’s determination,

the Martinezes failed to introduce any evidence concerning their

income or tax liability.   Accordingly, the Tax Court correctly

determined that the Martinezes failed to overcome the presumption

in favor of the Commissioner.

     The Tax Court correctly determined that the Martinezes

failed to demonstrate that the Commissioner’s assessment of civil

penalties was incorrect.   The Commissioner assessed civil

penalties for failure to file timely returns, negligence in the

underpayment of taxes, and negligence in the underpayment of

estimated taxes.   A penalty for failure to file may be assessed

by the Commissioner under I.R.C. §6651(a)(1) (1999), unless a

taxpayer can show that his failure to file was due to a


                                   5
reasonable cause and did not result from willful neglect.      See

United States v. Boyle, 469 U.S. 241, 245-246, (1985).     A penalty

for underpayment of taxes or underpayment of estimated taxes may

be imposed by the Commissioner unless a taxpayer can demonstrate

that the underpayment was not negligent.    See I.R.C. §§ 6653(a),

6654(a) (1999); Bilski v. Commissioner, 69 F.3d 64, 68 (5th Cir.

1995);    Ledbetter v. Commissioner, 837 F.2d 708, 711 (5th Cir.

1988), cert. denied, 488 U.S. 856 (1988).    Because the Martinezes

failed to introduce any evidence that their failure to file,

underpayment of taxes, or underpayment of estimated taxes, was

due to any reason other than their conscious decision not to pay

taxes, the Tax Court correctly upheld the Commissioner’s

assessment of civil penalties.

     The Tax Court correctly found that the Martinezes’ were not

entitled to have their tax calculated at the “married, filing

jointly” rate.   The Internal Revenue Code provides that the

“married, filing jointly” tax rates are available to married

individuals “who make a single return jointly.”    I.R.C. §1(a)(1)

(1999).   Therefore, only taxpayers who actually file a tax return

qualify for the “married, filing jointly” rates.    See Brattin v.

Commissioner, 64 T.C.M. (CCH) 1144, 1145 (1992); Thompson v.

Commissioner, 78 T.C. 558, 561 (1982); Dritz v. Commissioner, 28

T.C.M. (CCH) 874, 880 (1969), aff’d 427 F.2d 1176 (5th Cir.

1970).    Because the Martinezes failed to file tax returns for the

years in question, the Tax Court correctly determined that they

were not entitled to have their taxes calculated on a “married,


                                  6
filing jointly” basis.

     Lastly, the Tax Court correctly determined that no statute

of limitations applied to this case. The Internal Revenue Code

provides that, if a taxpayer fails to file a return, an

assessment proceeding may be brought at any time.   I.R.C.

§6501(c)(3) (1999).   Therefore, in this situation, the statute of

limitations in an enforcement action remains open indefinitely.

See Woolf v. United States, 578 F.2d 1103, 1005 (5th Cir. 1978);

Lucia v. United States, 474 F.2d 565, 570 (5th Cir. 1973).

Because the Martinezes never filed a tax return during the years

in question, the Tax Court correctly determined that no statute

of limitations applied.

                          III. CONCLUSION

     For all the foregoing reasons we AFFIRM the judgment of the

Tax Court.




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