                          T.C. Memo. 2000-14



                     UNITED STATES TAX COURT



                 PHILIP E. LUCAS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 195-99.                        Filed January 13, 2000.



     Philip E. Lucas, pro se.

     Diane L. Worland, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     ARMEN, Special Trial Judge:    Respondent determined a

deficiency in petitioner's Federal income tax for the taxable

year 1995 in the amount of $3,333, as well as an addition to tax

under section 6651(a)(1) for failure to file a timely return in
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the amount of $833.1   After a concession by respondent,2 the

issues for decision are as follows:

     (1) Whether petitioner is liable for income tax on his

wages.3   We hold that he is.

     (2) Whether petitioner is liable for the addition to tax for

failure to file a timely return.   We hold that he is.

                          FINDINGS OF FACT

     Some of the facts have been stipulated, and they are so

found.    Petitioner resided in Indianapolis, Indiana, at the time

that his petition was filed with the Court.




     1
        All section references are to the Internal Revenue Code
in effect for the taxable year in issue, and all Rule references
are to the Tax Court Rules of Practice and Procedure. All
amounts are rounded to the nearest dollar.
     2
        Respondent concedes that during the year in issue
petitioner was not an independent contractor as determined in the
notice of deficiency and, consequently, that he is not liable for
self-employment tax on his income. As a result, petitioner is
not entitled to the mechanical adjustment for one half of the
self-employment tax allowed in the notice of deficiency. See
sec. 164(f).
     3
        Although petitioner has not expressly raised the issue,
he appears to contend that he is not liable for any taxes,
including Social Security and Medicare taxes, for 1995. We note
that this Court has no jurisdiction to decide whether petitioner
is liable for Social Security and Medicare taxes in respect of
his income. Congress has only given this Court authority to
decide disputes with respect to certain types of taxes, the most
notable example of which is the income tax. See sec. 7442; Judd
v. Commissioner, 74 T.C. 651, 653 (1980); Griffin v.
Commissioner, T.C. Memo. 1995-246; see also Wilt v. Commissioner,
60 T.C. 977, 978 (1973).
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     Petitioner performed services for a subcontractor, N & M

Custom Framing (N & M), during 1994 and 1995.    Initially, during

a portion of 1994, N & M treated petitioner as an employee and

withheld income and Social Security or Medicare taxes from his

wages.    However for the entire year 1995, N & M treated

petitioner as an independent contractor and did not withhold any

Federal income tax or other employment-related taxes from his

wages.    For 1995, N & M issued petitioner a Form 1099

Miscellaneous, rather than a Form W-2, reflecting $20,373 of

income.

     Petitioner did not file a Federal income tax return for the

year in issue.    By notice of deficiency, respondent determined

that petitioner received self-employment income in the amount of

$20,373 and that he was liable for Federal income tax, as well as

self-employment tax.    Respondent now concedes that petitioner was

an employee for the year in issue and is not liable for self-

employment tax.    Respondent also determined that petitioner was

liable for an addition to tax under section 6651(a)(1) for

failure to timely file a return.

                               OPINION

     A.    Liability for Income Tax

     Petitioner contends that he is not liable for income tax for

the year in issue because his employer failed to withhold any

income tax from his wages.    He asserts that his employer is the
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party liable for such taxes.   He relies on IRS Publication 15

(Pub 15), known as “Circular E, Employer’s Tax Guide”:

     You [meaning the employer] will be liable for Social
     Security and Medicare taxes and withheld income tax if
     you do not deduct and withhold them because you treat
     an employee as a nonemployee. See Internal Revenue
     Code section 3509 for details.

     Because IRS publications are not authoritative sources of

Federal tax law, see Zimmerman v. Commissioner, 71 T.C. 367, 371

(1978), affd. without published opinion 614 F.2d 1294 (2d Cir.

1979); Green v. Commissioner, 59 T.C. 456, 458 (1972), we must

necessarily consult section 3509.    Indeed, Pub 15 itself directs

the reader to consult that section "for details".

     Section 3509 provides, as a general rule, that an employer

who fails to withhold income tax from an employee's wages by

reason of treating such employee as not being an employee for

withholding purposes shall be liable for income tax as if the

amount required to be withheld were equal to 1.5 percent of the

wages paid to such employee.   However, section 3509(d)(1)

specifically provides that the employee's liability for income

tax shall not be affected by the assessment or collection of any

tax determined against the employer under section 3509.      In other

words, the employee remains fully liable for income tax arising

from the receipt of gross wages.    See Navarro v. United States,

72 AFTR 2d 93-5424 (W.D. Tex. 1993); see also Stewart v. United

States, 55 AFTR 2d 85-506, 84-2 USTC par. 9962 (E.D. Wis. 1984).
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Therefore, even though N & M misclassified petitioner as an

independent contractor, petitioner is liable for income tax for

the year in issue.     Cf. Grooms v. Commissioner, T.C. Memo. 1992-

291.

       It is unfortunate that N & M did not ask petitioner to

complete a Form W-4 for the year in issue and did not withhold

income tax from petitioner's wages.      If it had done so, there

might not have been any deficiency in income tax in respect of

such wages.     However, N & M never withheld, and petitioner was

paid his gross wages without any reduction for withheld income

tax.    As a consequence, there is a deficiency in income tax for

which petitioner is liable.     We therefore hold for respondent on

this issue.

       B.   Addition to Tax for Failure To File Timely

       Section 6651(a)(1) provides for a 5 percent per month

addition to tax, not to exceed 25 percent, if a taxpayer fails to

file timely a Federal income tax return, unless such failure is

due to reasonable cause and not due to willful neglect.      The

taxpayer has the burden of proving that the Commissioner's

determination of the addition to tax is erroneous.       See BJR Corp.

v. Commissioner, 67 T.C. 111, 131 (1976); Bebb v. Commissioner,

36 T.C. 170 (1961); cf. sec. 7491, effective for court

proceedings arising in connection with examinations commencing

after July 22, 1998.
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     Respondent determined that petitioner is liable for an

addition to tax under section 6651(a)(1) for failure to timely

file his 1995 return.   Petitioner asserts that he did not file a

return for 1995 because he received a Form 1099 rather than a

Form W-2 from his employer.   He claims that given the

misclassification of his employment status by his employer, he

did not want to file a return as a self-employed individual.

     Misclassification of an employee, however, does not relieve

the employee of his liability for filing a correct tax return.

See Grooms v. Commissioner, supra; Baasch v. United States, 742

F. Supp. 65 (E.D.N.Y. 1990), affd. without published opinion 930

F.2d 911 (2d Cir. 1991).   There is no indication that petitioner

sought the advice of a tax adviser who would have informed him

that he was required to file a return under these circumstances.

Cf. Moorefield v. Commissioner, T.C. Memo. 1996-98, affd. on

other issues without published opinion 133 F.3d 928 (9th Cir.

1997).   Petitioner therefore did not have reasonable cause for

failing to file a return for 1995 and is liable for the addition

to tax under section 6651(a)(1).
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     To reflect our disposition of the disputed issues, as well

as respondent's concession,



                                      Decision will be entered

                              under Rule 155.
