                          T.C. Memo. 2005-70



                        UNITED STATES TAX COURT



               KEVIN RYAN ROBINSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16101-03.              Filed April 4, 2005.



     Kevin Ryan Robinson, pro se.

     Steven M. Webster, for respondent.



                          MEMORANDUM OPINION

     SWIFT, Judge:   This matter is before us under Rule 121 on

respondent’s motion for summary judgment with respect to

petitioner’s 1997, 1998, and 2000 Federal income tax deficiencies

and additions to tax.

     Respondent determined deficiencies in and additions to

petitioner’s Federal income taxes as follows:
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                                   Additions to Tax
         Year   Deficiency   Sec. 6651(a)(1) Sec. 6654(a)

         1997   $55,151          $12,388        $2,971
         1998    25,421            5,720         1,154
         2000    11,687              838            --


     All section references are to the Internal Revenue Code in

effect for the years in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.


Background

     Under Rule 91(f)(3), some of the facts have been deemed

stipulated and are so found.1

     At the time the petition was filed, petitioner was a

resident of Edgefield, South Carolina.

     For 1996, a year not in issue, petitioner filed his 1996

individual Federal income tax return and indicated thereon a




     1
        On July 9, 2004, respondent filed a Motion To Show Cause
Why Proposed Facts In Evidence Should Not Be Accepted As
Established (Rule 91(f) motion). On July 27, 2004, the Court
issued an order granting respondent’s Rule 91(f) motion and
directing petitioner to file a response to the motion by Aug. 27,
2004. The July 27, 2004, order also explained that failure by
petitioner to respond to any matter set forth in respondent’s
Rule 91(f) motion, including the proposed stipulation of facts,
would result in such matter’s being deemed stipulated for
purposes of the instant case. Petitioner failed to respond to
respondent’s Rule 91(f) motion, and, on Sept. 8, 2004, the Court
made absolute its July 27, 2004, order, and the facts set forth
in the proposed stipulation of facts were deemed stipulated for
purposes of trial and opinion herein.
                               - 3 -
head-of-household filing status and claimed four exemptions.       For

1996, $25,184 in Federal income taxes was paid by petitioner.

     During 1997, petitioner received income from various sources

as follows:


                       1997 Income                       Amount
     Wages--Homes of the CSRA, Inc.                     $186,925
     Nonemployee compensation--Belgravia Financial
       Services, LLC                                       1,485
     Refund of State income tax                              870
         Total                                          $189,280


Additionally, during 1997, $92 in Federal income taxes was

withheld from petitioner’s wages.

     During 1998, petitioner received income from various sources

as follows:


                        1998 Income           Amount
              Wages--Homes of the CSRA, Inc. $105,152
              Interest income                     365
                  Total                      $105,517


During 1998, no Federal income taxes were withheld from

petitioner’s wages.

     For 1999, a year not in issue, petitioner filed his 1999

individual Federal income tax return and indicated thereon a

single filing status and claimed four exemptions.    For 1999,

$3,154 in Federal income taxes was paid by petitioner.

     During 2000, petitioner received income from various sources

as follows:
                                - 4 -

                          2000 Income                 Amount
          Wages--Genfinity Corporation               $43,112
          Wages--Apple Homes Acquisition Corporation 18,015
              Total                                  $61,127


Additionally, during 2000, $7,962 in Federal income taxes was

withheld from petitioner’s wages.

     For 1997, 1998, and 2000, petitioner has not filed Federal

income tax returns.    Upon audit for each of the years 1997, 1998,

and 2000, respondent charged petitioner with the above respective

income, treated petitioner as having a single filing status with

one exemption, allowed petitioner a standard deduction, and

determined the tax deficiencies and additions to tax at issue

herein.

     On September 22, 2003, petitioner filed with the Court his

petition in which petitioner requested a redetermination of his

1997, 1998, and 2000 Federal income tax liabilities.

     On November 29, 2004, respondent filed under Rule 121 the

instant motion for summary judgment.    On January 19, 2005,

petitioner filed with the Court a response to respondent’s motion

for summary judgment in which petitioner made only conclusory

allegations with respect to respondent’s determinations of

petitioner’s tax liabilities and additions to tax.
                                - 5 -
Discussion

     Summary judgment is proper “if the pleadings, answers to

interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

decision may be rendered as a matter of law.”   Rule 121(b); Beery

v. Commissioner, 122 T.C. 184, 187 (2004).

     The party opposing the motion “may not rest upon the mere

allegations or denials of such party’s pleading,” but the

objecting party’s response “must set forth specific facts showing

that there is a genuine issue for trial.”    Rule 121(d); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (relating to

Fed. R. Civ. P. 56).   Summary judgment is appropriate where the

objecting party “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.”     Id.

at 322.

     However, the burden of establishing the nonexistence of a

“genuine issue” is on the party moving for summary judgment, and

where the evidentiary matter in support of the motion does not

establish the absence of a genuine issue, summary judgment is to

be denied even if the objecting party does not submit opposing

evidentiary matter.    Adickes v. S.H. Kress & Co., 398 U.S. 144,

160 (1970).
                                - 6 -
     We are satisfied herein that there is no genuine issue as to

the amount of income petitioner received in 1997, 1998, and 2000

and that a decision may be rendered with regard thereto as a

matter of law.

     The facts relating to petitioner’s wages, nonemployee

compensation, refund of State income taxes, and interest income

for 1997, 1998, and 2000, as determined by respondent in the

notices of deficiency, are established by virtue of petitioner’s

deemed admissions.   Further, petitioner’s response to

respondent’s motion for summary judgment with regard to

petitioner’s income is vague and is inadequate to avoid summary

judgment with regard thereto.

     With regard, however, to petitioner’s filing status and to

the number of exemptions to which petitioner is entitled, we are

not prepared to enter summary judgment.   In his petition herein,

involving 1997, 1998, and 2000, petitioner claimed head-of-

household filing status and his own and three additional

exemptions.   The evidence establishes that for 1996 petitioner

claimed head-of-household filing status and that for both 1996

and 1999 petitioner claimed four exemptions without any apparent

adjustment thereto by respondent.

     In respondent’s proposed stipulation of facts, respondent

did not ask for any stipulation from petitioner as to

petitioner’s filing status nor as to the number of exemptions to
                                - 7 -
which petitioner is entitled.   Therefore, we have no deemed

admissions relating to those matters.   Further, in his motion for

summary judgment, although respondent seeks summary judgment as

to the bottom line tax deficiencies and the additions to tax he

determined against petitioner, respondent does not mention

specifically petitioner’s filing status nor the number of

exemptions to which petitioner is entitled.   Accordingly, those

matters would appear to be still in issue, and summary judgment

would be premature with regard thereto.

     With regard to the additions to tax determined by respondent

in respondent’s notices of deficiency, respondent in his motion

for summary judgment specifically refers to and asserts

petitioner’s liability for each of the additions to tax.     By

attachments to his Rule 91(f) motion and to his motion for

summary judgment, respondent establishes petitioner’s failure to

file his 1997, 1998, and 2000 Federal income tax returns, and

respondent establishes the Federal income taxes withheld from

petitioner’s wages with regard to his 1997, 1998, and 2000

Federal income tax liabilities.

     In his response to respondent’s motion for summary judgment,

petitioner gives no explanation as to why his 1997, 1998, and

2000 Federal income tax returns were not timely filed and as to

why there were underpayments of his 1997 and 1998 Federal

estimated income taxes.   Respondent has met his burden of
                              - 8 -
production under section 7491(c) with regard to the section

6651(a)(1) additions to tax for 1997, 1998, and 2000 and the

section 6654(a) additions to tax for 1997 and 1998, and

petitioner has not provided any facts that raise any issue as to

his liability therefor.

     For the reasons stated, we shall grant partial summary

judgment with regard to the amount of petitioner’s 1997, 1998,

and 2000 income as determined by respondent and with regard to

the applicability of the additions to tax under section

6651(a)(1) for 1997, 1998, and 2000 and section 6654(a) for 1997

and 1998, but we deny summary judgment with regard to

petitioner’s filing status and exemptions for each of the years

in issue.2


                                      An appropriate order will

                                be issued.




     2
        Depending on the eventual outcome of the filing status
and exemption issues, the amount of petitioner’s tax deficiencies
and additions to tax may be adjusted from the amounts set forth
in respondent’s notices of deficiency.
