                        T.C. Memo. 2006-73



                      UNITED STATES TAX COURT



                 CHARLES E. LEWIS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16316-04.            Filed April 12, 2006.



     Charles E. Lewis, pro se.

     Nancy E. Hooten, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:   Respondent determined a deficiency in

petitioner’s Federal income tax for 2002 and additions to tax

under sections 6651(a)(1) and (2) and 6654(a).1   After



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

concessions,2 the issues for decision are:   (1) Whether

petitioner has a deficiency of $12,899 in his 2002 Federal income

tax; (2) whether petitioner is liable for an addition to tax

under section 6651(a)(1); (3) whether petitioner is liable for an

addition to tax under section 6654(a); and (4) whether the Court

should impose a penalty against petitioner under section 6673(a).

                        FINDINGS OF FACT

     Some of the facts have been deemed stipulated pursuant to

Rule 91(f) and are so found.    The stipulation of facts and the

attached exhibits are incorporated herein by this reference.    At

the time he filed the petition, petitioner resided in Atlanta,

Georgia.

     During 2002, petitioner received wage income of $7,371 from

Hartford Life Insurance Co.    Also during 2002, petitioner

received interest income from the following sources:    (1) $11,341

from TIAA-CREF; (2) $126 from US Federal Credit Union; (3) $847

from Minnesota Life Insurance Co.; and (4) $1 from NWA Federal

Credit Union.

     During 2002, petitioner requested and received early

retirement plan distributions of $1,091 and $34,908 from State

Street Retiree Services for Northwest Airlines Corp. Employees

(State Street Retiree Services).    State Street Retiree Services



     2
        Respondent concedes petitioner is not liable for an
addition to tax under sec. 6651(a)(2).
                                 - 3 -

issued Forms 1099-R, Distributions from Pensions, Annuities,

Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts,

Etc., to petitioner reflecting these early distributions.

Petitioner had not reached the age of 59-1/2 and was not disabled

at the time the distributions were made.       The distributions were

not part of a series of substantially equal periodic payments and

were not used to correct excess deferrals, excess contributions,

or excess aggregate contributions.       The distributions were not

made to petitioner after separation from service after the age of

55 or pursuant to a qualified domestic relations order.

Petitioner did not use the distributions to pay for health

insurance premiums or medical expenses.

     Petitioner did not file a Federal income tax return for

2002.    On April 29, 2004, respondent prepared a substitute for

return for petitioner.

     On June 8, 2004, respondent mailed a notice of deficiency to

petitioner.    Respondent determined a deficiency in petitioner’s

2002 Federal income tax of $12,899.       Of that amount, $3,600 is

attributable to a 10-percent additional tax on petitioner’s early

retirement plan distributions.    Respondent determined that

petitioner is liable for an addition to tax under section

6651(a)(1) of either $3,513 or $2,725.3      Respondent further


     3
        In the notice of deficiency, the addition to tax under
sec. 6651(a)(1) appears as both $3,513 and $2,725. Because
                                                   (continued...)
                              - 4 -

determined that petitioner is liable for an addition to tax under

section 6654(a) of $431.

     On September 7, 2004, petitioner filed his petition with

this Court contesting respondent’s determinations reflected in

the notice of deficiency.

                             OPINION

A.   Petitioner’s Federal Income Tax Deficiency

     Respondent determined a deficiency of $12,899 in

petitioner’s 2002 Federal income tax.   Petitioner bears the

burden of proving respondent erred in making this determination.

See Rule 142(a).

     Throughout these proceedings, petitioner has presented tax-

protester arguments, including:   (1) He is not a taxpayer; (2)

respondent has no jurisdiction over him; (3) respondent lacks

authority to assert income tax deficiencies; (4) respondent

failed to provide him with the “most basic ‘DUE PROCESS’

protections as provided by both Federal (4th, 5th, 6th and 7th

Amendments) and State Constitutions.”   Petitioner’s assertions

have been rejected by this Court and other courts, and “We

perceive no need to refute these arguments with somber reasoning

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


     3
      (...continued)
respondent has conceded that petitioner is not liable for an
addition to tax under sec. 6651(a)(2), the correct amount of the
addition to tax under sec. 6651(a)(1) should be 25 percent of the
deficiency, or $3,225. See infra p. 6.
                               - 5 -

these arguments have some colorable merit.”   Crain v.

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

Wetzel v. Commissioner, T.C. Memo. 2005-211 (rejecting as

frivolous the argument that the taxpayer was not a taxpayer);

Nunn v. Commissioner, T.C. Memo. 2002-250 (rejecting as without

merit the argument that the Commissioner had no jurisdiction over

the taxpayer or his documents).   We reject petitioner’s tax-

protester arguments as frivolous and without merit.4

     Under Rule 91(f), it was deemed stipulated that petitioner

received $7,371 of wage income, $12,315 of interest income, and

$35,999 from early retirement plan distributions.    It was further

stipulated that petitioner did not meet any of the exceptions to

the 10-percent additional tax imposed by section 72(t) on the

early distributions.   Petitioner has presented no evidence that

indicates respondent’s determination is incorrect.     Therefore, we

hold that petitioner has a Federal income tax deficiency of

$12,899 for 2002.




     4
        Petitioner also argued that he was “improperly denied a
collections due process hearing”. This argument likewise has no
merit. Petitioner filed his petition in response to the notice
of deficiency, and respondent has not taken any collection
action. Thus, petitioner is not entitled to a collection hearing
at this point. See secs. 6320, 6330.
                               - 6 -

B.   Additions to Tax

     1.   Burdens of Production and Proof

     Respondent bears the burden of production with respect to

petitioner’s liability for the additions to tax.   See sec.

7491(c); Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).

To meet his burden of production, respondent must come forward

with sufficient evidence indicating that it is appropriate to

impose the additions to tax.   See Higbee v. Commissioner, supra

at 446-447.   Once respondent meets his burden of production,

petitioner must come forward with evidence sufficient to persuade

the Court that respondent’s determinations are incorrect.

     2.   Section 6651(a)(1)

     Respondent determined that petitioner is liable for an

addition to tax under section 6651(a)(1) for 2002.   Section

6651(a)(1) imposes an addition to tax of up to 25 percent of the

amount of tax required to be shown on a return for failure to

file the return on the date prescribed (determined with regard to

any extension of time for filing), unless the taxpayer can

establish that such failure is due to reasonable cause and not

willful neglect.   Under Rule 91(f), it was deemed stipulated that

petitioner failed to file a Federal income tax return for 2002.

Respondent’s Certificate of Assessments and Payments also

indicates that petitioner failed to file a return.   We find that
                                - 7 -

respondent has met his burden of production with regard to the

addition to tax under section 6651(a)(1).

     Petitioner has presented no evidence indicating his failure

to file was due to reasonable cause or that respondent’s

determination is otherwise incorrect.    We hold that petitioner is

liable for an addition to tax under section 6651(a)(1) of $3,225.

     3.   Section 6654(a)

     Respondent determined that petitioner is liable for an

addition to tax under section 6654(a) of $431 for 2002.    Section

6654(a) imposes an addition to tax on an underpayment of

estimated tax unless one of the statutory exceptions applies.

See sec. 6654(e).   Under Rule 91(f), it was deemed stipulated

that petitioner failed to file a Federal income tax return for

2002 and did not make estimated tax payments during 2002.

Respondent’s Certificate of Assessments and Payments also

indicates that petitioner failed to file a return and did not

make estimated tax payments.    We find that none of the statutory

exceptions applies and that respondent has met his burden of

production.

     Petitioner has presented no evidence that respondent’s

determination is incorrect.    We hold that petitioner is liable

for an addition to tax under section 6654(a) of $431.
                                 - 8 -

C.   Penalty Under Section 6673(a)(1)

     At trial, respondent asked the Court to impose a penalty on

petitioner under section 6673(a).    Section 6673(a)(1) authorizes

the Court to require a taxpayer to pay the United States a

penalty in an amount not to exceed $25,000 whenever it appears to

the Court the taxpayer’s position is frivolous or groundless.

Sec. 6673(a)(1)(B).

     Petitioner has asserted tax-protester arguments throughout

these proceedings, and we have rejected these arguments as

frivolous and without merit.   However, it does not appear that

petitioner has previously been a litigant in this Court, or that

he was warned before trial about the possibility of a penalty

under section 6673(a).   For this reason, we decline to impose a

penalty under section 6673(a).    However, we strongly admonish

petitioner that if he persists in failing to file his tax returns

and in pursuing tax-protester arguments, we may not be so

favorably inclined in the future.

     In reaching our holdings, we have considered all arguments

made, and, to the extent not mentioned, we conclude that they are

moot, irrelevant, or without merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
