                                T.C. Memo. 2013-58



                         UNITED STATES TAX COURT



                    MICHAEL BURT, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 16542-10.                           Filed February 25, 2013.



      Michael Burt, pro se.

      A. Gary Begun, for respondent.



                           MEMORANDUM OPINION


      CHIECHI, Judge: This case is before us on respondent’s motion for

summary judgment (respondent’s motion).1 We shall grant respondent’s motion.

      1
       Respondent filed a motion for entry of decision. By Order dated January 11,
2013, we recharacterized that motion as a motion for summary judgment and
recharacterized petitioner’s response to respondent’s motion for entry of decision
                                                                        (continued...)
                                            -2-

[*2]                                    Background

         The record establishes and/or the parties do not dispute the following.

         Petitioner resided in Michigan at the time he filed the petition.

         On November 14, 2006, a Federal grand jury for the U.S. District Court for

the Eastern District of Michigan returned a four-count indictment (indictment)

against petitioner. In that indictment, petitioner was charged with violating

section 72012 by willfully attempting to evade and defeat Federal income tax (tax)

for each of the years 1998 through 2001. The indictment charged that petitioner

had the following unreported taxable income and unpaid tax liabilities for those

years:

                                      Unreported                Unpaid
                   Year             taxable income            tax liability
                   1998                 $49,263                 $21,146
                   1999                  55,400                  23,478
                   2000                  64,462                  26,745
                   2001                  90,394                  34,452


         1
        (...continued)
as petitioner’s response to respondent’s motion for summary judgment (petitioner’s
response).
         2
       All section references are to the Internal Revenue Code (Code) in effect for
the years at issue. All Rule references are to the Tax Court Rules of Practice and
Procedure.
                                            -3-

[*3] On May 22, 2008, after a trial in the U.S. District Court (criminal

proceeding), a jury found petitioner guilty on all counts in the indictment. The U.S.

District Court sentenced petitioner, inter alia, to 27 months’ imprisonment with

two years of supervised release.

       On December 5, 2008, petitioner appealed his conviction to the U.S. Court

of Appeals for the Sixth Circuit. On June 4, 2010, the Court of Appeals affirmed

petitioner’s conviction.

       On April 23, 2010, respondent issued a notice of deficiency (notice) to

petitioner. In that notice, respondent determined the following deficiencies in,

additions to, and fraud penalties on petitioner’s tax for petitioner’s taxable years

1998 through 2002:3

                                     Additions to tax under secs.              Penalty
                                                                              under sec.
Year        Deficiency     6651(a)(1)    6651(a)(2)    6651(f)      6654(a)    6663(a)
1998           $33,879        $8,470         ---            ---       ---      $25,409
1999             1,606          (196)        ---            ---       ---       19,135
2000            44,106         ---         $11,027     $31,977      $2,372       ---
2001             9,414         ---           2,354          6,825      376       ---
2002            12,177         ---           3,044          8,828      407       ---



       3
           All amounts are rounded to the nearest dollar.
                                         -4-

[*4] On September 2, 2011, we issued an Order granting respondent’s motion for

partial summary judgment. In that Order, we held that “petitioner is estopped from

denying liability for the fraud additions to tax and penalties for 1998 through

2001.”

      On October 15, 2012, we issued an Order in which we ordered petitioner to

file a response to respondent’s motion. In that Order, we also indicated that our

review of the record suggested that petitioner might intend to advance in this case

frivolous and/or groundless statements, contentions, arguments and/or questions.

We reminded petitioner in the Order dated October 15, 2012, about section

6673(a)(1) and admonished him that if he advanced frivolous and/or groundless

statements, contentions, arguments, and/or questions and/or instituted or maintained

this proceeding primarily for delay, we would impose on him a penalty under section

6673(a)(1) in an amount not exceeding $25,000.

                                      Discussion

      We may grant summary judgment where there is no genuine dispute as to any

material fact and a decision may be rendered as a matter of law. Rule 121(b);

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th

Cir. 1994).
                                              -5-

[*5] In respondent’s motion, respondent seeks summary adjudication that

petitioner is liable for the following amounts4 of deficiencies in, additions to, and

fraud penalties on petitioner’s tax for his taxable years 1998 through 2001:5

                                       Additions to tax under secs.              Penalty
                                                                                under sec.
 Year         Deficiency    6651(a)(1)     6651(a)(2)    6651(f)      6654(a)    6663(a)
 19981          $21,146         $5,287         ---           ---        ---      $15,860
 19991            -0-           -0-            ---           ---        ---       17,619
 20001            26,745         ---          $6,686    $19,390       $1,404       ---
 2001              9,414         ---           2,354         6,825      376        ---

        1
        The respective amounts shown above for each of petitioner’s taxable years
1998, 1999, and 2000 are less than the respective amounts that respondent
determined in the notice for each of those taxable years. The amount of the addition
to tax under sec. 6651(a)(1) for petitioner’s taxable year 1999 that respondent
determined in the notice was ($196).

        The respective amounts of the deficiencies in petitioner’s tax for his taxable

years 1998 and 2000 with respect to which respondent seeks summary adjudication

equal the respective amounts of the unpaid tax liabilities that the indictment

charged, and the jury agreed, petitioner had for those taxable years. The respective



        4
            All amounts are rounded to the nearest dollar.
        5
       In respondent’s motion, respondent concedes the determinations that
respondent made in the notice with respect to petitioner’s taxable year 2002, a
taxable year not involved in the criminal proceeding.
                                          -6-

[*6] amounts of the deficiencies in petitioner’s tax for his taxable years 1999 and

2001 with respect to which respondent seeks summary adjudication are less than the

respective amounts of the unpaid tax liabilities that the indictment charged, and the

jury agreed, petitioner had for those years.

      It is petitioner’s position that there are genuine disputes of material fact that

preclude us from granting respondent’s motion. In support of that position, petitioner

argues (petitioner’s withholding credit argument) that his “employer” withheld tax

from his wages during each of his taxable years 1998 through 2002 and that any

deficiency in his tax for each of those taxable years must be determined by allowing

him a credit for tax withheld for each such year.

      We have jurisdiction to redetermine the correct amount of a deficiency where

the Commissioner of Internal Revenue has issued a valid notice of deficiency and

the taxpayer has timely filed a petition. E.g., Versteeg v. Commissioner, 91 T.C.

339, 340 (1988). The term “deficiency” is defined in section 6211(a) to mean

      the amount by which the tax imposed * * * exceeds the excess of--

             (1) the sum of

                    (A) the amount shown as the tax by the taxpayer upon his
             return, if a return was made by the taxpayer and an amount was
             shown as the tax by the taxpayer thereon, plus
                                           -7-

[*7]               (B) the amounts previously assessed (or collected
             without assessment) as a deficiency, over--

             (2) the amount of rebates * * * made.

       Because the amount of a deficiency is determined “without regard to the credit

under section 31”,6 sec. 6211(b)(1), we will not consider petitioner’s withholding

credit argument in determining whether to grant respondent’s motion.

       In addition to petitioner’s withholding credit argument, petitioner advances in

petitioner’s response certain statements, contentions, arguments, and/or questions

that we find to be frivolous and/or groundless.

       Based upon our examination of the entire record before us, we conclude that

there is no genuine dispute as to any material fact that requires a trial in this case.

On that record, and taking into account the Order dated September 2, 2011, we

further conclude that respondent is entitled as a matter of law to summary

adjudication that petitioner is liable for deficiencies in, additions to, and fraud

penalties on petitioner’s tax for his taxable years 1998 through 2001 in the respective

amounts set forth in respondent’s motion.




       6
       Sec. 31(a) provides that the amount withheld from wages as tax is to be
allowed to the recipient of the income as a credit against the tax imposed by the
Code.
                                         -8-

[*8] We turn now sua sponte to section 6673(a)(1),7 a provision that we brought to

petitioner’s attention in the Order dated October 15, 2012. In that Order, we ordered

petitioner to file a response to respondent’s motion. We also admonished petitioner

in the Order dated October 15, 2012, that we would impose a penalty on him under

section 6673(a)(1) if he advanced frivolous and/or groundless statements,

contentions, arguments, and/or questions and/or instituted or maintained this

proceeding primarily for delay. Nonetheless, petitioner advances in petitioner’s

response certain statements, contentions, arguments, and/or questions that we find to

be frivolous and/or groundless.

      On the record before us, we find that petitioner’s position in this case is

frivolous and groundless and that he instituted and maintained this case primarily for

delay. Accordingly, we shall impose on petitioner a penalty under section 6673(a)(1)

in the amount of $20,000.

      We have considered any statements, contentions, arguments, and/or questions

of petitioner that are not frivolous and/or groundless and that are not discussed

herein, and we find them to be without merit and/or irrelevant.


      7
        Sec. 6673(a)(1) authorizes us to impose a penalty on a taxpayer in an amount
not exceeding $25,000 if, inter alia, the taxpayer instituted or maintained a
proceeding before us primarily for delay or the taxpayer’s position in the proceeding
is frivolous or groundless.
                                       -9-

[*9] On the record before us, we shall grant respondent’s motion.

      To reflect the foregoing, the concessions of respondent, and the Order dated

September 2, 2011,


                                             An appropriate order and decision will

                                      be entered.
