                          T.C. Memo. 1999-173



                        UNITED STATES TAX COURT



             ROBERT LEONARD BARNETT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2311-98.                          Filed May 20, 1999.



     Robert Leonard Barnett, pro se.

     Philip G. Owens, for respondent.



                          MEMORANDUM OPINION


     BEGHE, Judge:     Respondent determined the following

deficiencies in and additions to petitioner's Federal income tax:

                                        Additions to Tax
   Year      Deficiency        Sec. 6651(a)(1)     Sec. 6654(a)

   1994       $6,735              $1,387              $280
   1995        8,141               2,035               317
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All section references are to the Internal Revenue Code in effect

for the years at issue, and all Rule references are to the Tax

Court Rules of Practice and Procedure.

Background

     Petitioner has not filed Federal income tax returns for the

years in question.    Respondent's determinations are based

primarily on petitioner's receipt of wage income as a teacher and

pension income from prior employment, plus small amounts of self-

employment and interest income.    The only ground upon which

petitioner's timely filed petition contests respondent's

determinations is that "As a direct descendant of the First

Nations of this continent ('Indian') I am not taxed under the

provisions of ARTICLE 1 [sic], SECTION 2, OF THE CONSTITUTION OF

THE UNITED STATES".

     When petitioner filed his petition, he gave his address as

Waterview, Kentucky, and designated Louisville, Kentucky, as the

place of trial.   However, the case was continued from the Court's

January 11, 1999, Louisville trial session because petitioner had

taken a temporary teaching position at the Oglala Sioux

Reservation at Pine Ridge, South Dakota.

     The case is before the Court on respondent's motion for

summary judgment under Rule 121.    In his response to respondent's

motion, petitioner relies, as he does in his petition, upon

Article I, Section 2 of the U.S. Constitution as the basis of his
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claim to exemption.   Petitioner, in his response, also complains

that respondent has failed to explain the grounds for

respondent's determination and has failed to identify for

petitioner's benefit the treaties or statutes that might entitle

him, independently of the provisions of the U.S. Constitution, to

exemption from Federal income tax.     However, petitioner has not

pleaded or otherwise identified to respondent or the Court any

facts regarding petitioner's status as a member of any Indian

nation or tribe that might entitle him to exemption from Federal

income tax under any statute or treaty.

     In his response to respondent's motion, petitioner also

asserts--for the first time--that if he should be mistaken in his

claim to exemption from Federal income tax, he is entitled to

itemized deductions for charitable contributions and payments of

home mortgage interest, which would substantially reduce his tax

liabilities, that he had and continues to have reasonable cause

for not filing tax returns, and that additions for failure to pay

estimated tax should not be imposed.

Discussion

     Respondent's motion will be granted in part, insofar as we

sustain respondent's determinations that petitioner is not exempt

from Federal income tax and that petitioner is liable for

estimated tax additions on any deficiencies that we may

ultimately redetermine.
                              - 4 -


     Respondent's motion for summary judgment will be denied in

part, insofar as petitioner will be given the opportunity to

amend his petition to plead and at a trial to prove the facts

that bear on his belated assertions of entitlement to itemized

deductions and of reasonable cause for failure to file returns.

1.   Petitioner's Constitutional Argument

     Article I, Section 2 of the U.S. Constitution states in

relevant part:

          Representatives and direct Taxes shall be
     apportioned among the several States which may be
     included within this Union, according to their
     respective Numbers, which shall be determined by adding
     to the whole Number of free Persons, including those
     bound to Service for a Term of Years, and excluding
     Indians not taxed, three fifths of all other
     Persons.[1]

     It is well settled that the phrase "excluding Indians not

taxed" is simply part of an apportionment provision designed to

determine the number of representatives for each State and to

correctly apportion the direct taxes among the States.   In

apportioning the representatives and direct taxes among the

States, "Indians not taxed" were excluded from the count.     United

States v. Kagama, 118 U.S. 375, 378 (1886).   Although, at the

time the Constitution was adopted, some Indians were taxed, while


     1
       Amended in respects not germane to this inquiry by sec. 2
of the Fourteenth Amendment with respect to the mode of
apportionment of representatives among the several States and by
the Sixteenth Amendment with respect to taxes on income without
apportionment.
                              - 5 -


others were not, see Dillon v. United States, 792 F.2d 849 (9th

Cir. 1986), affg. Cross v. Commissioner, 83 T.C. 561 (1984), the

phrase does not create a general tax exemption for Indians.    See

Jourdain v. Commissioner, 71 T.C. 980, 988 (1979), affd. per

curiam 617 F.2d 507, 509 (8th Cir. 1980); United States v. Brown,

824 F. Supp. 124 (S.D. Ohio 1993).    Therefore, the Constitutional

phrase "Indians not taxed" provides no tax exemption for

petitioner.

2.   Petitioner's Tax Status Under Statute or Treaty

     It is also well settled that general acts of Congress,

including the Internal Revenue Code, apply to Indians unless a

statute or a treaty expressly exempts them.   See FPC v. Tuscarora

Indian Nation, 362 U.S. 99, 115-117 (1960); Superintendent of

Five Civilized Tribes v. Commissioner, 295 U.S. 418, 420-21

(1935).

     As the Supreme Court said in Squire v. Capoeman, 351 U.S. 1,

6 (1956):

          We agree with the Government that Indians are
     citizens and that in ordinary affairs of life, not
     governed by treaties or remedial legislation, they are
     subject to the payment of income taxes as are other
     citizens. * * *

     The prevailing rule is that all statutes of general

application apply to American Indians absent an express exemption

found in a statute or a treaty.   See Lazore v. Commissioner, 11

F.3d 1180 (3d Cir. 1993), affg. in part and revg. in part on
                               - 6 -


another ground T.C. Memo. 1992-404; Sylvester v. Commissioner,

T.C. Memo. 1999-35; United States v. Brown, supra at 128.

Petitioner has not relied on any statute or treaty that entitles

him to exemption from Federal taxation by reason of his

membership in any Indian nation or tribe--if any such there be--

whose members enjoy such exemption.    Petitioner neither

identified the Indian nation or tribe in which he claims

membership nor brought to our attention any statute or treaty

that grants any such exemption from the Federal income tax laws

for interest and income derived from employment as an employee or

independent contractor.   Consequently, petitioner is not exempt

from the provisions of the Internal Revenue Code, and the amounts

determined by respondent, which petitioner does not otherwise

contest, are included in his gross income for Federal income tax

purposes.

     As the Court of Appeals said in LaFontaine v. Commissioner,

533 F.2d 382, 382 (8th Cir. 1976), affg. per curiam T.C. Memo.

1975-165:

          Although the taxpayer [a certified member of the
     Turtle Mountain Band of Chippewa Indians and Chief of
     the Grand Council of Confederated Nations] has cited
     more than thirty treaties, he has failed to point to
     any provision in any of the treaties which exempts his
     wages from federal income taxation because he is an
     Indian. The Tax Court was also unable to find any
     exempting provision. As the taxpayer has failed to
     demonstrate his right to an exemption, the decision of
     the Tax Court is affirmed.
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3.   Estimated Tax Addition

     Section 6654 provides for an addition to the tax in the case

of any underpayment of estimated tax by an individual.

Petitioner's basis for his failure to pay estimated tax is that,

as an American Indian, he is not subject to tax.

     Section 6654 is mandatory unless at least one of the

exceptions contained in section 6654(e) applies.   In addition,

unless an individual's situation fits the limited circumstances

of section 6654(e)(3), it is irrelevant whether there was

reasonable cause, a lack of willful neglect, or extenuating

circumstances for underpayment of estimated tax.   See Mitchell v.

Commissioner, 51 T.C. 641, 648 (1969), revd. on other grounds 430

F.2d 1 (5th Cir. 1970), revd. on other grounds 403 U.S. 190

(1971).   Petitioner has not alleged that he comes within the

limited circumstances of section 6654(e)(3) for which a waiver is

available, or that he fits within any of the other exceptions

contained in section 6654(e).   Petitioner is subject to the

additions to tax under section 6654.

4.   Remaining Issues for Trial

     We doubt, on the basis of the arguments and authorities in

respondent's motion, that petitioner will be able to prove facts

that will persuade the Court that he had reasonable cause for

failure to file returns.   See United States v. Boyle, 469 U.S.

241 (1985); Logan Lumber Co. v. Commissioner, 365 F.2d 846 (5th
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Cir. 1966); Fides v. Commissioner, 137 F.2d 731 (4th Cir. 1943);

Stevens Bros. Found., Inc. v. Commissioner, 39 T.C. 93 (1962),

affd. in part and revd. in part on other grounds 324 F.2d 633

(8th Cir. 1963).   Nevertheless, we will return the case to the

Court's general docket for trial on this remaining issue, as well

as on the issue of petitioner's entitlement to itemized

deductions.   The parties should attempt to settle the case by

agreement on these issues.


                                             An appropriate order

                                         will be issued.
