                        T.C. Memo. 2005-26



                      UNITED STATES TAX COURT



         BILLY HYLER AND BONITA M. HYLER, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10839-04.            Filed February 16, 2005.



     Billy and Bonita M. Hyler, pro sese.

     James A. Kutten and Melinda Williams, for respondent.



                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

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

7443A(b)(5) and Rules 180, 181, and 183.1    The Court agrees with



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

and adopts the opinion of the Special Trial Judge, which is set

forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:   This matter is before the Court

on respondent’s Motion For Summary Judgment, filed pursuant to

Rule 121.   As explained in detail below, we shall grant

respondent’s motion.

                             Background

     In February 2001, petitioners filed a joint Form 1040, U.S.

Individual Income Tax Return, for the taxable year 2000 on which

they reported wages of $51,804, total tax of $5,121, and tax

withholding of $5,346.   Petitioners’ tax return included two

Forms 2439, Notice to Shareholder of Undistributed Long-Term

Capital Gains.   The Forms 2439 stated that petitioners were

shareholders of a regulated investment company (RIC) or real

estate investment trust (REIT).2   The Forms 2439 identified the

investment entity as “Black Investment, Tax Dept. of Treasury”

and listed the amount of tax paid by the entity on petitioners’



     2
        Sec. 852(b)(1) and (3)(A) provides that tax will be
imposed on the taxable income and capital gains of a regulated
investment company (RIC). Sec. 852(b)(3)(D)(i) provides that a
RIC’s shareholder “shall include, in computing his long-term
capital gains in his return * * * such amount as the * * * [RIC]
shall designate”. Sec. 852(b)(3)(D)(ii) provides that such
shareholder “shall be deemed to have paid * * * the tax imposed”
under sec. 852(b)(3)(A), and the shareholder shall be allowed a
“credit or refund, as the case may be, for the tax so deemed to
have been paid by him.”
                               - 3 -

behalf as $92,636.   Petitioners entered $92,636 on Form 1040,

line 64 (“Other payments”) and claimed a refund on a total

overpayment of $92,861.

     Petitioners each signed the tax return.   The tax return was

not signed by a tax return preparer.   Respondent processed the

tax return and issued to petitioners a refund check in the amount

of $93,071.

     On March 24, 2004, respondent issued a notice of deficiency

to petitioners for the taxable year 2000.   In the notice,

respondent determined a deficiency in petitioners’ income tax in

the amount of $92,636, asserting:

     The claim you filed on Form 2439 includes a credit that
     you assert is owed to you as a reparation or tax rebate
     based on the impact of slavery. Since there is no law
     allowing this type of payment, we cannot honor this
     type of credit. Accordingly, your income tax liability
     has been increased based on the credit recapture. Due
     to the allowance of the credit, you will need to return
     the portion of your refund based on the disallowed
     amount.

     Petitioners filed a timely petition challenging the notice

of deficiency.3   In the petition, petitioners contend that

respondent should attempt to collect the amount in dispute from

their tax return preparer “if he was behaving fraudulently” in

this matter.   Petitioners also allege that the period of




     3
        At the time the petition was filed, petitioners resided
in Columbia, Missouri.
                               - 4 -

limitations on assessments had expired before respondent issued

the notice of deficiency.

     Respondent filed an answer to the petition.    Respondent’s

answer included affirmative allegations in response to

petitioners’ argument that the period of limitations had expired

before respondent issued the notice of deficiency.

     As indicated, respondent filed a Motion for Summary

Judgment.   Relying on Wilkins v. Commissioner, 120 T.C. 109

(2003), and other cases, respondent contends that the Internal

Revenue Code does not allow a credit (or any other deduction or

allowance) for slavery reparations.    In addition, citing section

6501(a) and (b)(1), respondent contends that petitioners’ tax

return for 2000 was deemed filed on April 15, 2001, and,

therefore, that the March 24, 2004 notice of deficiency was

issued to petitioners within the applicable 3-year period of

limitations.   In the absence of any dispute as to a material

fact, respondent maintains that he is entitled to judgment as a

matter of law.

     By Order dated November 24, 2004, the Court directed

petitioners to file a written response to respondent’s motion.

Petitioners did not respond to the Court’s Order.

     This matter was called for hearing at the Court’s motions

session in Washington, D.C.   Counsel for respondent appeared at

the hearing and offered argument in support of respondent’s
                                - 5 -

motion.   There was no appearance by or on behalf of petitioners

at the hearing, nor did petitioners file with the Court a written

statement pursuant to Rule 50(c).

                            Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.   See Florida Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988).   Summary judgment may

be granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”   Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).   The moving

party bears the burden of proving that there is no genuine issue

of material fact, and factual inferences will be read in a manner

most favorable to the party opposing summary judgment.   See

Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).

     The record reflects that there is no dispute as to any

material fact and that summary judgment may be rendered in

respondent’s favor as a matter of law.
                              - 6 -

     The facts in this case are indistinguishable from the facts

presented in Wilkins v. Commissioner, supra.     Like petitioners,

the taxpayers in Wilkins v. Commissioner, supra, claimed tax

credits on Form 2439 for slavery reparations.    We held that the

Internal Revenue Code “does not provide a tax deduction, credit,

or other allowance for slavery reparations”, and granted the

Commissioner’s motion for summary judgment.     Id. at 112-113.

     Petitioners’ assertion that respondent should pursue their

tax return preparer is misplaced.   As previously observed,

petitioners' tax return was not signed by a tax return preparer.

In any event, although Congress has provided the Commissioner

with remedies that may be enforced against dishonest tax return

preparers, see secs. 6694, 6695, 7407, there is no provision in

law that would relieve petitioners of their personal liability

for the tax deficiency that respondent determined in this case.4

     Finally, petitioners’ argument that the period of

limitations bars assessment is simply incorrect.    Section 6501(a)

provides that Federal income taxes generally must be assessed

within 3 years after a tax return is filed.    Section 6501(b)(1)

provides that a tax return that is filed early, i.e., before the

last day prescribed by law for filing such return, shall be


     4
        Of course, a taxpayer may assert that he or she
reasonably relied on a tax return preparer as a defense to
certain additions to tax and/or penalties. However, respondent
did not determine that petitioners are liable for any addition to
tax or penalty in this case.
                                 - 7 -

considered filed on the last day.    Thus, although petitioners

filed their tax return for 2000 in February 2001, the return is

deemed to have been filed on Monday, April 16, 2001.       See sec.

7503.   It follows that the notice of deficiency dated March 24,

2004, upon which this case is based, was issued within the

applicable 3-year period of limitations.

     Consistent with the preceding discussion, we shall grant

respondent’s Motion For Summary Judgment.

     To reflect the foregoing,



                                         An Order and Decision will

                                 be entered granting respondent’s

                                 Motion For Summary Judgment.
