                       T.C. Memo. 1997-46



                     UNITED STATES TAX COURT



                JEROME V. MANCEBO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 23724-95.                   Filed January 27, 1997.


     Jerome V. Mancebo, pro se.

     Richard W. Kennedy, for respondent.



                       MEMORANDUM OPINION


     COUVILLION, Special Trial Judge:   This case was heard

pursuant to section 7443A(b)(3)1 and Rules 180, 181, and 182.




1
     Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
                              - 2 -


     Respondent determined the following deficiencies in Federal

income taxes and additions to tax against petitioner for the

years shown:


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

     1991       $2,284            $340                $ 73
     1992        2,351             520                  90
     1993        2,426             607                 101


     The adjustments giving rise to the above deficiencies and

additions to tax are based upon the failure of petitioner to file

Federal income tax returns and to report the following income for

the years indicated:


                                      1991     1992           1993

  U.S. Civil Service Retirement   $18,420     $19,092        $19,656
  Social Security                   1,818       1,884          1,944
  Interest income                       4           3              3


     At the time the petition was filed, petitioner's legal

residence was Sandy, Utah.

     The sole issues for decision are whether the above amounts

constitute gross income, and, if so, whether petitioner is liable

for the additions to tax.

     At trial, petitioner admitted that he did not file Federal

income tax returns for the years 1991, 1992, and 1993.

Petitioner admitted that, in prior years, he had filed income tax

returns.
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     Petitioner retired in 1988 from the Federal Aviation

Administration, an agency of the United States.   Petitioner was

an air traffic controller and had 32 years of Federal service.

     Petitioner admitted receiving the amounts determined by

respondent in the notice of deficiency but steadfastly maintained

throughout the trial that these amounts did not constitute income

and that he was not liable for any Federal income tax.   At trial,

he stated:    "I just want it understood that I consider all this a

fraud.    The notice of deficiency, the whole thing, the filing of

a form 1040, a return, a false assessment; it's all fraud, Your

Honor."

     In his petition, petitioner alleged that "The Commissioner

is not authorized to use a notice of deficiency to collect a

Qualified State Individual Income Tax which is treated, for

deficiency purposes, as a Subtitle A tax pursuant to 26 CFR

1.6001-1."    Petitioner did not elaborate on the meaning of this

allegation, since the notice of deficiency relates to Federal

income taxes, and there is no determination in the notice of

deficiency that respondent is attempting to collect a State

income tax.   In a pretrial memorandum filed by respondent,

respondent explains that petitioner contends he is a nonresident

alien because he lives in the Utah Republic, not the United

States.   The Court takes that to indicate that petitioner

believes that respondent is unlawfully attempting to collect
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taxes for the Utah Republic, and that the United States is not a

governmental entity.    The argument of petitioner, whatever the

rationale, is nonsensical.    Petitioner presented no evidence at

trial to refute the determinations in the notice of deficiency.

To the contrary, petitioner admitted receiving the amounts

characterized as taxable income in the notice of deficiency.      The

determinations of the Commissioner in a notice of deficiency are

presumed correct, and the taxpayer bears the burden of proving

that the determinations are in error.    Rule 142(a); Welch v.

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

     Petitioner's case is frivolous.    All taxpayers with taxable

income are generally required by law to file Federal income tax

returns.   Sec. 6012.   Under sections 6651 and 7203, taxpayers who

fail to file income tax returns may be subject to civil additions

to the tax and prosecution for criminal offenses.    Moreover,

under section 6673(a), this Court may award a penalty in favor of

the United States if any proceeding has been instituted or

maintained in this Court for frivolous reasons or for purposes of

delay.   A valid notice of deficiency was issued by respondent to

petitioner pursuant to section 6212.    The Court finds no need to

address the frivolous and nonsensical allegations and contentions

of petitioner.   To do so might suggest that petitioner's

arguments have some colorable merit, which they do not.     See

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


simply stated, petitioner has not established a case nor has he

submitted any evidence to refute respondent's determinations.

Respondent, therefore is sustained as to the deficiencies in tax

and the additions to tax.

     At trial, respondent orally moved for the award of a penalty

under section 6673(a).   The penalty under section 6673(a) is

applicable whenever it appears to the Court that (A) proceedings

before it have been instituted or maintained by the taxpayer

primarily for delay, (B) the taxpayer's position in such

proceeding is frivolous or groundless, or (C) the taxpayer

unreasonably failed to pursue available administrative remedies.

On this record, the Court concludes that this proceeding was

instituted and maintained by petitioner primarily for delay, and

that petitioner's position is frivolous and groundless.     Under

section 6673(a), the Court may require the taxpayer to pay to the

United States a penalty not in excess of $25,000 in such

circumstances.   The Court holds that a penalty under section

6673(a) is warranted in this case.      Respondent's oral motion is

granted, and the amount of that penalty will be $1,500.



                                An appropriate order and decision

                         will be entered for respondent.
