                        T.C. Memo. 2005-199



                      UNITED STATES TAX COURT



                RUSSELL W. COULTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13661-03.              Filed August 16, 2005.



     Russell W. Coulton, pro se.

     Linette B. Angelastro, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     KROUPA, Judge:   Respondent determined a deficiency of

$87,529 in petitioner’s Federal income tax for 2001, a $21,882.25

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

file a return and a $3,497.97 addition to tax under section 6654

for failure to pay estimated income taxes for 2001.    After


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

concessions,2 the sole issue for decision is whether petitioner

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

failure to timely file a return.    He filed a document purporting

to be a return on which he claimed zero income and zero tax

liability and to which he attached frivolous tax protester

arguments.    We hold that he is liable for the addition to tax.

                          FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the accompanying exhibits are

incorporated by this reference.    Petitioner resided in

Atascadero, California, at the time he filed the petition.

     Petitioner submitted a Form 1040, U.S. Individual Income Tax

Return for 2001 (1040 document), to respondent, on which

petitioner entered zeros on each line regarding income and tax.

Petitioner included his name, address, and Social Security number

at the top of the 1040 document, claimed dependency exemptions

for himself and his children (listing their names and Social

Security numbers), and signed the 1040 document under penalties

of perjury.




     2
      The parties agree that petitioner is liable for a
deficiency in tax of $15,823 for 2001. Based on the agreed
amount of this deficiency, the amount of the addition to tax
under sec. 6651(a)(1) for failure to timely file a return is
$3,955.75. Petitioner also conceded on brief that, because he
made no estimated tax payments in 2001, he is liable for the
addition to tax under sec. 6654 for failure to pay estimated
income taxes. After giving effect to the agreed amount of
deficiency, the addition to tax for failure to pay estimated
income taxes under sec. 6654 is $632.
                                -3-

     Petitioner also submitted to respondent a four-page

attachment to the 1040 document that began: “To Whom this

‘return’ and ‘attachment’ to said ‘return’ may concern”.    In the

attachment, petitioner asserted various tax protester arguments

and asked respondent to explain what Code section required him to

file a return.   Petitioner disputed that he had any income tax

liability and that he was obligated to file a return.   Despite

having previously complied with his obligation to file returns

and pay taxes for many years previously, petitioner asserted that

the Code’s requirements did not apply to him and that he could

opt out of his obligations to file returns and pay taxes by

sending these statements to respondent.   Petitioner also asserted

that the decision in United States v. Long, 618 F.2d 74 (9th Cir.

1980), as well as other cases, showed that a form with zeros

qualified as a return.

     Respondent did not treat the 1040 document as a return.     In

examining petitioner’s tax liability for 2001, respondent

retrieved information return data from third-party payors

indicating that petitioner received $18,660 in nonemployee

compensation, $194 of interest, and $239,900 from a real estate

sale during 2001.   Respondent sent petitioner the examination

report and correspondence asking petitioner for information.

Rather than provide income and expense information in response to

this correspondence, petitioner submitted further constitutional

and tax protester arguments.   Petitioner also sent constitutional

and tax protester arguments to the Secretary of the Treasury.
                               -4-

     Respondent issued a notice of deficiency on July 30, 2003,

to petitioner for taxable year 2001, determining the deficiency,

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

file a return, and an addition to tax for failure to pay

estimated income taxes under section 6654.   Petitioner timely

filed a petition for review with this Court.   As explained

previously, the parties resolved all issues other than whether

petitioner is liable for the late filing addition to tax under

section 6651(a)(1).

                             OPINION

     Petitioner argues that his 1040 document constitutes a

return under precedent in the Court of Appeals for the Ninth

Circuit and that he should not be penalized for asking for an

explanation why he was liable to file a return and pay the tax.

Petitioner further argues that even if his 1040 document does not

constitute a “return”, petitioner’s failure to file a return was

due to reasonable cause and not to willful neglect.   Respondent

argues that petitioner’s 1040 document was not a return.   We

shall address each of these arguments in turn.

     We begin with the burden of proof.   Respondent bears the

burden of production with respect to additions to tax.   Sec.

7491(c); Higbee v. Commissioner, 116 T.C. 438, 446 (2001).      Once

respondent has come forward with sufficient evidence indicating

it is appropriate to impose the relevant penalty, the burden of

proof shifts to petitioner to introduce evidence sufficient to

persuade the Court that petitioner’s failure to file was due to
                                 -5-

reasonable cause and not to willful neglect.      See Higbee v.

Commissioner, supra.

I.   Whether Petitioner’s 1040 Document Was a Return

     Section 6651(a)(1) provides for an addition to tax in the

event a taxpayer fails to file a timely return, unless it is

shown that such failure is due to reasonable cause and not due to

willful neglect.   Sec. 6651(a)(1).      “Return” is not defined in

section 6651, nor in any other section of the Code.      See secs.

6011, 6651; Swanson v. Commissioner, 121 T.C. 111, 122-123

(2003).    The Court of Appeals for the Ninth Circuit, to which the

present case is appealable, has held that a Form 1040 is a return

under the criminal statute, section 7203 (willful failure to file

returns), where the document contained all zeros, attached

constitutional arguments, and was signed under penalties of

perjury.   United States v. Long, supra.

     In Long, the Court of Appeals for the Ninth Circuit was

faced with a situation in which the practice of the IRS, as then

in effect, was not to keep copies of documents that it considered

invalid returns, nor to retain records of whether such documents

had been filed.    Having no record whether the taxpayer had filed

a return for any of the years in question, the Federal Government

sought to impose criminal penalties on him for willful failure to

file income tax returns.    Id. at 75.    The taxpayer introduced

“facsimiles” of the forms he claimed to have filed.       Id.   The

facsimiles were completed with all zeros and had a tax protest

tract attached.    Id.
                                   -6-

       The Court of Appeals for the Ninth Circuit reversed the

taxpayer’s conviction for willful failure to file, holding that

the forms containing all zeros were “returns” for section 7203

purposes because the zeros constituted information from which the

tax could be computed.     Id.   The court noted that a document with

false or misleading figures may convey false information (i.e.,

zero may not be the taxpayer’s correct tax liability), but it

does convey information.    Id. at 76.    The court found that the

documents therefore should be treated as returns.      Id.

       The Court of Appeals’s view that a return containing all

zeros constitutes a return is contrary to the view of several

other courts that have considered the question.     See United

States v. Mosel, 738 F.2d 157 (6th Cir. 1984); United States v.

Smith, 618 F.2d 280 (5th Cir. 1980); United States v. Rickman,

638 F.2d 182 (10th Cir. 1980); Cabirac v. Commissioner, 120 T.C.

163, 168-170 (2003); Halcott v. Commissioner, T.C. Memo. 2004-

214.

       As Long involved a different provision of the Code, it is

not squarely on point.     Long involved the taxpayer’s appeal from

a criminal conviction for willful failure to file under section

7203.    United States v. Long, supra.    Here, petitioner contests

applying a civil failure to file addition to tax under section

6651(a)(1).

       In addition, in Long, the IRS had not saved any documents

taxpayer had submitted but sought to prosecute the taxpayer for

willful failure to file.     Id.   The taxpayer provided “facsimiles”
                                  -7-

of the documents he allegedly filed, and the court was asked to

decide whether they constituted returns.     Id.

     In this case, the parties introduced petitioner’s returns as

evidence at trial.   Petitioner may not rely on Long to avoid

civil additions to tax under these circumstances.

     We followed the Supreme Court’s definition of what

constitutes a return for statute of limitations purposes in Beard

v. Commissioner, 82 T.C. 766, 777 (1984), affd. per curiam 793

F.2d 139 (6th Cir. 1986).     See Badaracco v. Commissioner, 464

U.S. 386 (1983); Germantown Trust Co. v. Commissioner, 309 U.S.

304 (1940); Zellerbach Paper Co. v. Helvering, 293 U.S. 172

(1934); Florsheim Bros. Drygoods Co. v. United States, 280 U.S.

453 (1930).   The four-part test of Beard, applying the Supreme

Court precedents, requires that a document contain sufficient

data to calculate tax liability, purport to be a return,

represent an honest and reasonable attempt to satisfy the

requirements of the tax law, and be executed by the taxpayer

under penalties of perjury.     Beard v. Commissioner, supra at 777.

We have applied this test to cases under section 6651(a)(1) as

well as in cases under other sections of the Code.3    See Cabirac
v. Commissioner, supra at 168-170.



     3
      See Mendes v. Commissioner, 121 T.C. 308, 329-330 (2003)
(Vasquez, J., concurring) (citing cases applying this test to
particular sections of the Code). Several Courts of Appeals have
also applied similar tests to determine whether a document is a
return. See, e.g., Moroney v. United States, 352 F.3d 902, 905
(4th Cir. 2003); United States v. Hindenlang, 164 F.3d 1029, 1033
(6th Cir. 1999).
                                 -8-

     The Court of Appeals for the Ninth Circuit has characterized

our test as a widely accepted interpretation that provides a

sound approach under the Code.     United States v. Hatton, 220 F.3d

1057, 1060-1061 (9th Cir. 2000).    The Court of Appeals for the

Ninth Circuit also views this test as consistent with the policy

that a return should obtain tax information with uniformity and

completeness to facilitate the physical task of handling and

verifying returns.   Id.

     We focus on one requirement of the Supreme Court cases, as

articulated in Beard, to determine whether the 1040 document

constitutes a return.    Under the Beard test, a document must be

an honest and genuine endeavor to satisfy the tax law in order to

be a return.   Zellerbach Paper Co. v. Helvering, supra at 180;

Beard v. Commissioner, supra at 777.    We doubt that a document

containing all zeros and tax protester rhetoric represents an

honest and genuine endeavor to satisfy the tax law.     See United

States v. Moore, 627 F.2d 830, 835 (7th Cir. 1980); United States

v. Rickman, supra at 184; Cabirac v. Commissioner, supra; Halcott

v. Commissioner, supra.

     Tax protesters, as a general rule, have not been found to

make an honest and genuine attempt to meet the requirements of

the Code.   United States v. Moore, supra.   We agree that the

Commissioner should not be forced to accept as a return a

document clearly not intended to provide the required

information.   See id.   The timeworn tax protester statements

attached to petitioner’s 1040 document indicate that petitioner
                                  -9-

was not making an honest and reasonable attempt to comply with

the tax law.   Instead, these arguments indicate that petitioner

is challenging the tax laws and tax system in general.    Courts

unfailingly characterize these arguments as meritless.    See,

e.g., Crain v. Commissioner, 737 F.2d 1417, 1418 (5th Cir. 1984);

Funk v. Commissioner, 123 T.C. 213, 217 (2004).

      Petitioner did not make an honest and genuine endeavor to

satisfy the law and therefore did not file a return for purposes

of section 6651.   See Cabirac v. Commissioner, supra; Halcott v.

Commissioner, supra.

      We therefore find that petitioner failed to file a return

for 2001.   We now address whether petitioner’s failure to file

was due to reasonable cause and not to willful neglect.

II.   Whether Petitioner’s Failure To File a Return Was Due to
      Reasonable Cause and Not to Willful Neglect

      As previously discussed, petitioner has the burden to show

that his failure to file was due to reasonable cause and not to

willful neglect.   Higbee v. Commissioner, 116 T.C. at 446.      To

prove reasonable cause, petitioner must demonstrate that he

exercised ordinary business care and prudence but nevertheless

was unable to file the return within the specified time.     See

United States v. Boyle, 469 U.S. 241, 245 (1985); sec. 301.6651-
1(c)(1), Proced. & Admin. Regs.    Willful neglect means a

“conscious, intentional failure or reckless indifference”.

United States v. Boyle, supra at 245.
                                -10-

     Petitioner argues on brief that his reliance on materials

(the tax protester materials) and seminars provided by Irwin

Schiff (Mr. Schiff), constitutes reasonable cause for his failure

to file a tax return.    Further, he asserts that, because he

relied on the tax protester materials, he did not willfully

neglect to file a proper tax return.     The tax protester

materials, according to petitioner, misled him into believing

that a return was not required.    Petitioner also asserts that he

relied on the Ninth Circuit’s decision in Long and believed that

his 1040 document was a valid tax return.

     We reject petitioner’s arguments.    First, petitioner did not

testify at trial and did not introduce any evidence regarding his

alleged reliance on the tax protester materials.    Petitioner

first asserted that he relied on the tax protester materials in

his posttrial brief.    Statements in briefs do not constitute

evidence.   See Rule 143(b); Shepherd v. Commissioner, 115 T.C.

376, 399 n.22 (2000), affd. 283 F.3d 1258 (11th Cir. 2002).

     Petitioner also asserts that he relied on Long and that his

reliance constitutes reasonable cause to believe that the 1040

document qualified as a return.    Although petitioner cited Long
in the attachment to his 1040 document, petitioner did not cite

Long in his petition, his amended petition, or in his pretrial

memorandum.   Nor did he testify or introduce other evidence at

trial concerning his alleged reliance on that case.
                                 -11-

     We are not persuaded that petitioner acted in good faith or

in fact relied on Long when he prepared his 1040 document.     We

find that petitioner’s asserted reliance on Long does not

constitute reasonable cause and the absence of willful neglect.

     In sum, petitioner has not shown that his failure to file a

Federal income tax return for 2001 was due to reasonable cause

and not to willful neglect.   Thus, we find that petitioner is

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

     Petitioner has argued that he should not be subject to the

addition to tax under section 6651(a)(1) because the addition to

tax penalizes him for asking for an explanation why he was liable

to file a return and pay tax.    Petitioner’s arguments were

frivolous.   Although petitioner filed returns and paid tax for 20

years previously and respondent notified petitioner in 2000 that

his arguments were frivolous, petitioner nevertheless attempted

to challenge the tax system by filing documents reporting zero

income and zero tax liability and attaching frivolous tax

protester correspondence.   Petitioner was well aware of the

requirement to file tax returns and pay tax, but petitioner

continued to assert shopworn, meritless tax protester arguments.

We have imposed a penalty under section 6673 on taxpayers who

have raised similar arguments.    See, e.g., Roberts v.

Commissioner, 118 T.C. 365 (2002), affd. per curiam 329 F.3d 1224

(11th Cir. 2003); Pierson v. Commissioner, 115 T.C. 576 (2000);

Hodges v. Commissioner, T.C. Memo. 2005-168.    Though we do not

impose a penalty here, nor does respondent seek a section 6673
                                 -12-

penalty in this case, we caution petitioner that should he bring

similar arguments before this Court in the future, he is at risk

that the Court is likely to impose such a penalty, up to $25,000.

     Accordingly, we sustain respondent’s determination in the

notice of deficiency with respect to the addition to tax under

section 6651(a)(1), as adjusted to reflect the agreed upon tax

liability.

     To reflect the foregoing,


                                             Decision will be

                                        entered for respondent.
