                         T.C. Memo. 1995-498



                       UNITED STATES TAX COURT



         DUANE B. AND LINDA L. ERWIN, ET AL.,1 Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 8625-95, 8626-95,        Filed October 17, 1995.
                 8627-95.



     Stuart Spielman and James A. Kutten, for respondent.



                         MEMORANDUM OPINION

     DAWSON, Judge:    These related cases were assigned to Special

Trial Judge Robert N. Armen, Jr., pursuant to the provisions of


     1
       The following cases are related and considered herewith:
Duane B. Erwin, docket No. 8626-95; and Linda L. Erwin, docket
No. 8627-95. A related case involving Angela D. Erwin, docket
No. 8624-95, was previously dismissed for lack of jurisdiction.
section 7443A(b)(4) and Rules 180, 181, and 183.2     The Court

agrees with and adopts the Opinion of the Special Trial Judge,

which is set forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

      ARMEN, Special Trial Judge:    Each of these cases is before

the Court on respondent's Motion To Dismiss For Failure To State

A Claim Upon Which Relief Can Be Granted, filed pursuant to Rule

40.

      Petitioners resided in Independence, Missouri, at the time

their petitions were filed in these cases.

Respondent's Notices of Deficiency

      By notices dated February 23, 1995, respondent determined

deficiencies in petitioners' Federal income taxes for the taxable

years 1992 and 1993, as well as a penalty and additions to tax,

as follows:

Docket No. 8625-95
Duane B. and Linda L. Erwin
                                   Penalty
          Year   Deficiency      Sec. 6662(a)

          1992   $14,029            $2,799

Docket No. 8626-95
Duane B. Erwin

                                        Additions to tax
          Year   Deficiency      Sec. 6651(a)     Sec. 6654(a)

          1993   $4,363              $1,156               $183

      2
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable years in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                               - 3 -

Docket No. 8627-95
Linda L. Erwin

                                          Additions to tax
      Year     Deficiency          Sec. 6651(a)     Sec. 6654(a)
      1993     $4,356                 $1,089              $182


     The deficiency in income tax for 1992 is based on

respondent's determination that petitioners failed to report the

following items of income:

     Item of income                                  Amount

     Wages (Hallmark Cards, Inc.)                       $626
     Interest (United Consumers Credit Union)            124
     IRA distribution (United Consumer C/U)           56,417
     Total                                            57,167

The deficiency in income tax includes the 10-percent additional

tax imposed by section 72(t) for premature distributions from

qualified retirement plans.   The penalty under section 6662(a) is

based on respondent's determination that the underpayment of tax

for 1992 is due to negligence or intentional disregard of rules

or regulations.

     Insofar as petitioner Duane B. Erwin is concerned, the

deficiency in income tax for 1993 is based on respondent's

determination that petitioner failed to report on a timely-filed

income tax return for that year:    (1) Wages from Hallmark Cards,

Inc., and (2) income from self-employment, as reconstructed by

respondent. The deficiency in income tax includes the self-

employment tax.   The addition to tax under section 6651(a) is

based on respondent's determination that petitioner failed to
                                 - 4 -

file a timely income tax return for 1993.    Finally, the addition

to tax under section 6654(a) is based on respondent's

determination that petitioner failed to pay the requisite

estimated income tax for 1993.

     Insofar as petitioner Linda L. Erwin is concerned, the

deficiency in income tax for 1993 is based on respondent's

determination that petitioner failed to report income from self-

employment, as reconstructed by respondent, on a timely filed

income tax return for that year.    The deficiency in income tax

includes the self-employment tax.    The addition to tax under

section 6651(a) is based on respondent's determination that

petitioner failed to file a timely income tax return for 1993.

Finally, the addition to tax under section 6654(a) is based on

respondent's determination that petitioner failed to pay

estimated income tax for 1993.

Petitioners' Petition at Docket No. 8625-953

     Petitioners filed a petition for redetermination on May 24,

1995.    In their petition, petitioners admit that "citizens and

resident aliens of the United States are taxed on all their net

     3
       The petition filed at docket No. 8626-95 by petitioner
Duane B. Erwin and the petition filed at docket No. 8627-95 by
petitioner Linda L. Erwin are virtually identical to the petition
filed by petitioners at docket No. 8625-95. Similarly, the
history of docket Nos. 8626-95 and 8627-95 subsequent to the
filing of the petitions parallels exactly the history of docket
No. 8625-95. Accordingly, we shall limit our discussion in this
Opinion to the petition filed at docket No. 8625-95. It should
be understood, however, that what we say in respect of that
docket applies equally to the other two dockets.
                                  - 5 -

income regardless of its source."      Nevertheless, petitioners

allege that they are not subject to the Federal income tax

because they are "without the jurisdiction" of the United States.

In this regard, petitioners allege that they are neither United

States citizens nor resident aliens because they are "state

citizens of Missouri (not State of Missouri)".        Petitioners also

allege that they are not nonresident aliens engaged in a trade or

business within the United States, and that they are not

nonresident aliens who have elected to be treated as resident

aliens.

     Petitioners attached a number of documents to their

petition.    One such document is an "Affidavit in Support of

Petition".    This document states in part:

          That Duane B. Erwin and Linda L. Erwin, the
     workmanship of God, are naturally in a state of perfect
     freedom to order their actions, and dispose of their
     possessions and persons, as they think fit, within the
     bounds of the law of nature, that is, the law of reason
     and common equity, without asking leave, or depending
     upon the will of any other man.

                      *   *   *    *      *   *   *

          That Duane B. Erwin and Linda L. Erwin are state
     citizens of Missouri, and have continually abode in
     Jackson County, Missouri.

          That Missouri is a free and independent State
     united by and under the Constitution of the United
     States.

          That 26 U.S.C. (I.R.C. 1939 and 1954) imposes NO
     tax on the person of the state citizen within the
     jurisdiction of Missouri, a free and independent state.
                              - 6 -

     Petitioners also attached to their petition a series of

documents identified as "Exodus Documents", which petitioners

apparently filed with the local recorder's office in Missouri and

which include, inter alia, an "Abjuration of Citizenship", a

"Declaration of Citizenship", and "Affidavit of Pledge".   The

"Abjuration of Citizenship" states as follows:

           I, Duane B. Erwin/Linda L. Erwin, a NATURAL
     FREEBORN NATIVE in Jackson County, Missouri, having
     obtained tender mercy from God our Saviour, who will
     have all men to be saved, and to come unto the
     knowledge of the truth. For there is one God, and one
     mediator between God and men, the man Christ Jesus; who
     gave himself a ransom for all, to be testified in due
     time.

          And I thank Jesus Christ, Son of the living God,
     that he hath delivered me from this present evil world.
     Now having been delivered from the power of darkness
     and translated into the kingdom of God's dear Son,
     being of full age, possessed of a sound mind, and not
     acting under fraud, duress, or undue influence, do
     solemnly swear and affirm the following:

          1. That of my own free will, I voluntarily,
     intentionally and willingly abjure, disavow, and
     relinquish the citizenship of the United States, and
     renounce and abandon with solemnity allegiance to the
     United States.

          2. That the United States is a foreign country, a
     private corporation. I am not a member of the
     aforesaid foreign corporation, the United States. I am
     not a U.S. Citizen, and I do not elect to be a
     resident-alien of the United States (District of
     Columbia), its territories or possessions. I freely
     and wholly choose to renounce and quit the United
     States forever and never to return under its
     jurisdiction.

          3. That all vows, oaths, anathemas, obligations,
     pledges of all names, which I have vowed, sworn,
     devoted, or bound myself to, from birth until this 3rd
     day of March, 1995, I repent, of them all, they shall
                                 - 7 -

     all be deemed forgiven, abjured, absolved, annulled,
     void and made of no effect, and shall not stand; the
     vows shall not be reckoned vows, the obligations shall
     not be obligatory, nor the oaths considered as oaths;
     all signatures of the property known as Duane B.
     Erwin/Linda L. Erwin that appear on all United States
     Federal Forms, Contracts, Codicils, or documents of any
     description are repudiated and forever cast into
     forgetfulness.

     The "Declaration of Citizenship", the second of the several

"Exodus Documents", states in part as follows:

          Blessed be the God and Father of our Lord Jesus
     Christ, who according to his abundant mercy hath
     begotten us again unto a lively hope by the
     resurrection of Jesus Christ from the dead, to an
     inheritance incorruptible, undefiled, which does not
     fade, reserved for the saints of the Most High, who are
     kept by the power of God through faith unto salvation
     ready to be revealed in the last time.

                     *   *   *    *      *   *   *

          1. That I, Duane B. Erwin/Linda L. Erwin, a
     Follower of God, Natural Born Citizen, Free Person,
     born in Green County, Missouri, of my own freewill, do
     knowingly, willingly, intentionally and voluntarily vow
     and devote upon solemn PLEDGE that I am a Citizen of
     Missouri, and any claim to the contrary is based on
     fraud, and is null and void and shall not stand, nunc
     pro tunc.

     The "Affidavit of Pledge" is a pledge of allegiance to the

"Missouri Republic" and pledges to "defend and protect this my

Country, Missouri, its Sovereignty and Constitution from both

foreign and domestic enemies."

Respondent's Rule 40 Motion and Subsequent Developments

     As indicated, on June 28, 1995, respondent filed a Motion To

Dismiss For Failure To State A Claim Upon Which Relief Can Be

Granted.   Shortly thereafter, on June 30, 1995, the Court issued
                                - 8 -

an order calendaring respondent's motion for hearing and also

directing petitioners to file a proper amended petition in

accordance with the requirements of Rule 34.    In particular, the

Court directed petitioners to file a proper amended petition

setting forth with specificity each error allegedly made by

respondent in the determination of the deficiency and separate

statements of every fact upon which the assignments of error are

based.    Petitioners did not file an amended petition and did not

otherwise respond to the Court's Order.

     Respondent's motion to dismiss was called for hearing in

Washington, D.C., on August 2, 1995, and again on August 16,

1995.    Counsel for respondent appeared at both hearings and

presented argument and evidence in support of the pending motion.

Petitioners did not appear at either hearing, nor did they file

any written statement of their position under Rule 50(c).4

Discussion

     Rule 40 provides that a party may file a motion to dismiss

for failure to state a claim upon which relief can be granted.

We may grant such a motion when it appears beyond doubt that the

party's adversary can prove no set of facts in support of a claim

that would entitle him or her to relief.    Conley v. Gibson, 355




     4
       Petitioners were reminded of the applicability of Rule
50(c) in the Court's Order dated June 30, 1995, calendaring
respondent's motion for hearing.
                                - 9 -

U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th

Cir. 1982).

     Rule 34(b)(4) requires that a petition filed in this Court

contain clear and concise assignments of each and every error

which the taxpayer alleges to have been committed by the

Commissioner in the determination of the deficiency in dispute.

Rule 34(b)(5) further requires that the petition contain clear

and concise lettered statements of the facts on which the

taxpayer bases the assignments of error.    See Jarvis v.

Commissioner, 78 T.C. 646, 658 (1982).     The failure of a petition

to conform with the requirements set forth in Rule 34 may be

grounds for dismissal.   Rules 34(a)(1); 123(b).

     In general, the determinations made by the Commissioner in a

notice of deficiency are presumed to be correct, and the taxpayer

bears the burden of proving that those determinations are

erroneous.    Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933).   Moreover, any issue not raised in the pleadings is

deemed to be conceded.   Rule 34(b)(4); Jarvis v. Commissioner, 78

T.C. 646, 658 n.19 (1982); Gordon v. Commissioner, 73 T.C. 736,

739 (1980).

     The petition filed in this case does not satisfy the

requirements of Rule 34(b)(4) and (5).   There is neither

assignment of error nor allegation of fact in support of any

justiciable claim.   Rather, there is nothing but tax protester

rhetoric and legalistic gibberish, as demonstrated by the
                              - 10 -

passages from the petition, and the attachments thereto, that we

have quoted above.   See Abrams v. Commissioner, 82 T.C. 403

(1984); Rowlee v. Commissioner, 80 T.C. 1111 (1983); McCoy v.

Commissioner, 76 T.C. 1027 (1981), affd. 696 F.2d 1234 (9th Cir.

1983).

     The Court's Order dated June 30, 1995, provided petitioners

with an opportunity to assign error and allege specific facts

concerning their liability for the taxable year in issue.

Unfortunately, petitioners failed to properly respond to the

Court's Order.   Rather, petitioner elected to continue to proceed

with time-worn tax protester rhetoric.   See Abrams v.

Commissioner, supra; Rowlee v. Commissioner, supra; McCoy v.

Commissioner, supra; Karlin v. Commissioner, T.C. Memo. 1990-496.

     We see no need to painstakingly address petitioners' basic

argument.   The short answer to it is that petitioners are not

exempt from Federal income tax or from the imposition of

appropriate penalties and additions to tax.   See Abrams v.

Commissioner, supra at 406-407.    Moreover, as the Court of

Appeals for the Fifth Circuit has remarked: "We perceive no need

to refute these arguments with somber reasoning and copious

citation of precedent; to do so might suggest that these

arguments have some colorable merit."    Crain v. Commissioner, 737

F.2d 1417, 1417 (5th Cir. 1984).

     Because the petition fails to state a claim upon which

relief can be granted, we will grant respondent's motion to
                               - 11 -

dismiss for failure to state a claim.   See Scherping v.

Commissioner, 747 F.2d 478 (8th Cir. 1984); see also Nieman v.

Commissioner, T.C. Memo. 1993-533; Solomon v. Commissioner, T.C.

Memo. 1993-509, affd. without published opinion 42 F.3d 1391 (7th

Cir. 1994).

     We turn now, on our own motion, to the award of a penalty

against petitioners under section 6673(a).

     As relevant herein, section 6673(a)(1) authorizes the Tax

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

not in excess of $25,000 whenever it appears that proceedings

have been instituted or maintained by the taxpayer primarily for

delay or that the taxpayer's position in such proceeding is

frivolous or groundless.

     The record in this case convinces us that petitioners were

not interested in disputing the merits of either the deficiency

in income tax or the penalty determined by respondent in the

notice of deficiency.   Rather, the record demonstrates that

petitioners regard this case as a vehicle to protest the tax laws

of this country and espouse their own misguided views.

     A petition to the Tax Court is frivolous "if it is contrary

to established law and unsupported by a reasoned, colorable

argument for change in the law."   Coleman v. Commissioner, 791

F.2d 68, 71 (7th Cir. 1986).   Petitioners' position, as set forth

in the petition, consists solely of tax protester rhetoric and
                              - 12 -

legalistic gibberish.   Based on well established law,

petitioners' position is frivolous and groundless.

     We are also convinced that petitioners instituted and

maintained this proceeding primarily, if not exclusively, for

purposes of delay.   Having to deal with this matter wasted the

Court's time, as well as respondent's.    Moreover, taxpayers with

genuine controversies were delayed.

     In view of the foregoing, we will exercise our discretion

under section 6673(a)(1) and in our decision in docket No.

8625-95 require each petitioner to pay a penalty to the United

States in the amount of $1,500.     Coleman v. Commissioner, supra

at 71-72; Crain v. Commissioner, supra at 1417-1418; Coulter v.

Commissioner, 82 T.C. 580, 584-586 (1984); Abrams v.

Commissioner, supra at 408-411.

     To reflect the foregoing,



                                      Orders of dismissal and

                                 decisions will be entered in

                                 each case.
