                         T.C. Memo. 2008-266



                       UNITED STATES TAX COURT



                RICHARD A. CUSTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5317-07.                Filed December 1, 2008.



     Richard A. Custer, pro se.

     Emly B. Berndt, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion to dismiss for lack of prosecution pursuant
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to Rule 123(b).1      By notice of deficiency, respondent determined

a deficiency of $16,854 in petitioner’s 2004 Federal income tax.

                                Background

       In the notice of deficiency, respondent determined that

petitioner failed to report wage income of $28,463 from

ExpressJet Airlines, Inc., and $52,527 from Continental Airlines,

Inc.       Respondent also determined that petitioner failed to report

from Fidelity Destiny II a $64 dividend and a $5,000 capital

gain.       Respondent made these determinations based on Forms W-2,

Wage and Tax Statement, and Forms 1099-DIV, Dividends and

Distributions, issued to petitioner.

       On March 6, 2007, petitioner invoked the jurisdiction of

this Court by timely filing a petition containing numerous

frivolous and groundless “tax defier”2 arguments including:


       1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code in effect for the
year in issue.
       2
        On Apr. 8, 2008, the U.S. Department of Justice announced
the creation of “the National Tax Defier Initiative or TAXDEF.”
Press Release, U.S. Department of Justice, Nathan J. Hochman, Tax
Division’s Assistant Attorney General, Announces the Creation of
the National Tax Defier Initiative (Apr. 8, 2008) (available at
www.usdoj.gov/opa/pr/2008/April/08_tax_275.html); see also
Lukacs, “Justice Launches National Tax Fraud Crackdown”, 119 Tax
Notes 141 (Apr. 14, 2008); 2008 TNT 70-57 (Apr. 10, 2008); Finet,
“Hochman Addresses Tax Protestor Initiative, Tax Accrual
Workpapers, Other Tax Issues”, Daily Tax Rept. (BNA) No. 50, at
K-1 (Mar. 14, 2008). The purpose of TAXDEF “is to reaffirm and
reinvigorate the Tax Division’s commitment to investigate,
pursue, and where appropriate, prosecute those who take concrete
                                                   (continued...)
                              - 3 -

     4)   The determination of the tax at issue in the
          Notice of Deficiency is based upon the following
          errors:

          a)   The Commissioner erred in considering the
               petitioner to be an “employee” during the tax
               year 2004.
          b)   The Commissioner erred in considering the
               petitioner to have had “wages” during the tax
               year 2004.
          c)   The commission erred in determining for the
               tax year 2004 that the petitioner omitted
               $86,054 of income.

     5)   The facts upon which the petitioner relies, as the
          basis of the petitioners case, are as follows:

          a)   The petitioner does not fall within the
               definition of “employee” as defined by
               section 3401(c) of the Internal Revenue Code.
          b)   The petitioner did not have “wages” as
               defined by section 3401(a) of the Internal
               Revenue Code for the tax year 2004.
          c)   The petitioner's W-2s for the tax year 2004
               incorrectly showed a total of $86,054 of
               “wages”.
          d)   On Sept. 14, 2006 the Commissioner issued the
               petitioner a form 4549 for the tax year 2004
               using incorrect W-2 information as a basis
               for calculating the petitioner's
               “deficiency”.
          e)   On Dec. 4, 2006 the Commissioner issued the
               petitioner a Notice of Deficiency for the tax
               year 2004 using incorrect W-2 information as
               a basis for calculating the petitioner's
               “deficiency”.



     2
      (...continued)
action to defy and deny the fundamental validity of the tax
laws.” Press Release, U.S. Department of Justice, supra.
Additionally, “one of the initiative’s goals is to address the
data gap created by the Internal Revenue Service Restructuring
and Reform Act of 1998, which prohibits the * * * [IRS] from
labeling any taxpayer as an illegal tax protester or using a
similar designation.” Lukacs, “Justice Launches National Tax
Fraud Crackdown”, 119 Tax Notes at 142.
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     On April 24, 2007, respondent filed an answer denying the

material allegations of the petition.

     By notice dated December 27, 2007, the Court set this case

for trial at the Court’s Cleveland, Ohio, session beginning June

2, 2008.    This notice specifically stated:    “YOUR FAILURE TO

APPEAR MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION

AGAINST YOU.”

     On June 2, 2008, the Court called this case from the

calendar.    Petitioner did not appear at the calendar call, nor

did anyone appear on his behalf.    At that time, respondent orally

moved to dismiss for lack of prosecution.      Respondent stated:

          I, as counsel   for Respondent, sent a letter to Mr.
     Custer on February   29th [2008], setting a Brannerton
     [sic] conference.    He did not respond to that letter or
     call to reschedule   the hearing [i.e., Branerton
     conference] we had   set for March 12th [2008].

          I sent a follow-up letter, on April 22nd [2008],
     to the Petitioner containing a stipulation of facts and
     requesting that he return the stipulation of facts, if
     he was in agreement, or provide additional
     documentation to include the stipulation of facts. I
     have received no response to that.

          Additionally, Mr. Custer, the Petitioner, did not
     cooperate with IRS Appeals.

The Court asked respondent to file the motion in writing, and we

set the case for recall on June 3, 2008.

     On June 3, 2008, the Court recalled this case.      Petitioner

again failed to appear in person or through a representative.       At

that time, respondent filed a written motion that the case be
                               - 5 -

dismissed for lack of prosecution and that the Court impose

sanctions on petitioner under section 6673(a) (respondent’s

motion).   Respondent attached to respondent’s motion the

previously mentioned Branerton letter3 dated February 29, 2008,

and the followup letter dated April 22, 2008.   In the followup

letter dated April 22, 2008, respondent advised petitioner that

continuing to maintain frivolous arguments could subject

petitioner to sanctions pursuant to section 6673(a) of up to

$25,000, and that respondent would move for such sanctions if

petitioner’s behavior warranted it.

     At the recall, respondent stated the following:

          Your Honor, I’d like to point out for the record
     that in the Respondent’s motion to dismiss for lack of
     prosecution, we are seeking sanctions under § 6673 for
     the Petitioner’s continued pursuit of frivolous and
     groundless arguments. Specifically, in this case, the
     only issue he raised in his petition was that he was
     not an employee and did not have wages pursuant to
     Internal Revenue Code § 3401. Therefore, he had no
     income tax liability.

          The Court had previously sanctioned the
     Petitioner, Mr. Custer, in Docket No. 21335-05 when the
     Court granted Respondent’s motion for summary judgment.
     They [sic] sanctioned Mr. Custer $5,000 under § 6673.

In respondent’s motion, respondent moved that the Court impose

sanctions on petitioner pursuant to section 6673(a) “for

petitioner’s continued assertion of frivolous and groundless

arguments.”   That same day, the Court also filed respondent’s



     3
         See Branerton Corp. v. Commissioner, 61 T.C. 691 (1974).
                               - 6 -

pretrial memorandum, which stated that respondent expected to

file a motion to dismiss for lack of prosecution and a motion for

imposition of sanctions.   In support of the imposition of

sanctions pursuant to section 6673(a) respondent wrote in his

pretrial memorandum:   “Petitioner has made frivolous arguments in

a past Tax Court case and continues to maintain these arguments

in the current case.   In his previous Tax Court Case, Docket No.

21335-05L, the Court imposed a § 6673 penalty in the amount of

$5,000.”   The opinion in docket No. 21335-05L was rendered as a

bench opinion.

                            Discussion

I.   Rule 123(b)

      The Court may dismiss a case and enter a decision against a

taxpayer for his failure to properly prosecute or to comply with

the Rules of this Court.   Rule 123(b).   Rule 123(b) generally

applies in situations where the taxpayer bears the burden of

proof.   As a general rule, the taxpayer bears the burden of

proving the Commissioner’s deficiency determinations incorrect.

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

Section 7491(a), however, provides that if a taxpayer introduces

credible evidence and meets certain other prerequisites, the

Commissioner shall bear the burden of proof with respect to

factual issues relating to the liability of the taxpayer for a

tax imposed under subtitle A or B of the Internal Revenue Code.
                                - 7 -

       Petitioner failed to appear and did not introduce any

evidence.    We conclude that the burden of proof regarding the

deficiency determined in the statutory notice of deficiency is

not placed on respondent pursuant to section 7491(a).

Furthermore, petitioner advanced shopworn arguments

characteristic of tax-protester/tax defier rhetoric that has been

universally rejected by this and other courts.    See Wilcox v.

Commissioner, 848 F.2d 1007 (9th Cir. 1988), affg. T.C. Memo.

1987-225; Carter v. Commissioner, 784 F.2d 1006, 1009 (9th Cir.

1986); Charczuk v. Commissioner, 771 F.2d 471 (10th Cir. 1985),

affg. T.C. Memo. 1983-433; Michael v. Commissioner, T.C. Memo.

2003-26; Knelman v. Commissioner, T.C. Memo. 2000-268, affd. 33

Fed. Appx. 346 (9th Cir. 2002).    We shall not painstakingly

address petitioner’s assertions “with somber reasoning and

copious citation of precedent; to do so might suggest that these

arguments have some colorable merit.”    Crain v. Commissioner, 737

F.2d 1417, 1417 (5th Cir. 1984).

       Respondent has connected, insofar as he is required to,

petitioner with the unreported income (i.e., via the Forms W-2

and Forms 1099-DIV).    See Mills v. Commissioner, T.C. Memo. 2007-

270.    Accordingly, we will grant respondent’s motion to dismiss

this case for lack of prosecution.
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II.   Section 6673(a)(1)

      Section 6673(a)(1) authorizes this Court to penalize up to

$25,000 a taxpayer who institutes or maintains a proceeding

primarily for delay or pursues a position in this Court which is

frivolous or groundless.   Petitioner’s conduct has convinced us

that he maintained this proceeding primarily for delay.

Petitioner’s actions have resulted in a waste of limited judicial

and administrative resources that could have been devoted to

resolving bona fide claims of other taxpayers.          See Cook v.

Spillman, 806 F.2d 948 (9th Cir. 1986).        Petitioner’s insistence

on making frivolous tax-protester/tax defier types of arguments

indicates an unwillingness to respect the tax laws of the United

States.   Accordingly, we shall grant the motion for sanctions and

require petitioner to pay a penalty to the United States pursuant

to section 6673 of $10,000.

      To reflect the foregoing,


                                               An appropriate order of

                                          dismissal and decision will

                                          be entered.
