                        T.C. Memo. 1996-24


                      UNITED STATES TAX COURT



                   MARK C. NAGY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10430-95.        Filed January 24, 1996.



     Mark C. Nagy, pro se.

     Maria Murphy, for respondent.



                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Larry L. Nameroff pursuant to the provisions of section

7443A(b)(4) and Rules 180, 181, and 183.1    The Court agrees with


     1
          All section references are to the Internal Revenue
Code. 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

    NAMEROFF, Special Trial Judge:     This case 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.

Respondent further moved for the imposition of sanctions pursuant

to section 6673.   Petitioner resided in Los Alamitos, California,

at the time the petition was filed in this case.

     Respondent by a notice of deficiency dated March 13, 1995,

determined deficiencies in, and additions to, petitioner's

Federal income taxes for the taxable years 1989, 1990, and 1991

as follows:

                            Additions to tax
       Year    Deficiency   Sec. 6651(a)(1) Sec. 6654(a)
       1989     $16,054         $4,014        $1,084
       1990       7,923          1,981           521
       1991      13,206          3,172           725

     The deficiencies in income tax (including self-employment

tax) are based on respondent's determination that petitioner

failed to file income tax returns for the taxable years before

the Court and had gross income, as reconstructed by respondent,

in the respective amounts of $48,337, $29,724, and $40,696.

Respondent further determined that petitioner had unreported

interest in 1989 of $343 and Form W-2 wages in 1991 in the amount

of $3,800 (of which $517 was withheld).    The additions to tax
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under section 6651(a)(1) are based on respondent's determination

that petitioner's failure to file timely income tax returns was

not due to reasonable cause.   The additions to tax under section

6654(a) are based on respondent's determination that petitioner

failed to pay the requisite estimated income tax for the years in

issue.

     The petition, timely filed, contains the following

allegations: (reproduced exactly)

     THE PETITIONER, UPON PRESENTMENT BY INTERNAL REVENUE,
     RETURNED AND REFUSED FOR CAUSE UCC 3-501 SAID
     PRESENTMENTS WITHOUT DISHONOR. IN ADDITION, PETITIONER
     MARK NAGY, IS NOT A "U.S. CITIZEN" NEITHER IS HE A
     'RESIDENT NOR INHABITANT' OF THE U.S. AND HAS NO INCOME
     EFFECTIVELY CONNECTED WITH THE UNITED STATES THAT MARK
     NAGY DID NOT KNOWINGLY OR VOLUNTARILY ENTER INTO ANY
     AGREEMENT OR CONTRACT TO BE LIABLE FOR THE NATIONAL
     DEBT, OR 'ELECTED' TO BE TREATED AS A RESIDENT OF THE
     UNITED STATES UNDER 26 CFR PART 5h; 26 USC, SECTION
     6013 (g) & (h) BY THE SIGNING OF FORM 1040 OR OTHER
     RELATED U.S. FORMS. MARK NAGY IS NOT A PARTY TO ANY
     TRANSACTION WITH THE U.S. LET THE U.S. PRODUCE THE
     ORIGINAL SIGNED CONTRACT [SEC.] 871 4(b) FURTHER
     PETITIONER SAYETH NOT.

     After respondent filed the instant motion to dismiss,

petitioner filed an Objection in which he claims, inter alia,

that self-employment tax is an "excise-taxable" activity and that

          3. Petitioner is a non-resident alien for purpose
          of the Federal Excise Tax.
                              * * *
          6. At issue in this case is the factual error the
          Respondent made by classifying the Petitioner as a
          resident of the U.S., and that the petitioner is
          engaged in excise taxable activity. Since the
          Petitioner was/is a non resident alien and not engaged
          in any excise taxable activity he disputes [the
          deficiencies, additions to tax, and interest].
                               - 4 -


     This case was scheduled for hearing on respondent's motion

for December 11, 1995, in Los Angeles, California.    Petitioner

failed to appear for that hearing.     The Court did receive a copy

of a document purporting to be a "(2nd) SECOND CODICIL" wherein

petitioner purportedly attempted to revoke "all signatures that

appear on every Federal 1040 Form (Codicil) including, but not

limited to, the 'original' 1040 Form and all subsequent 1040

Forms that bear the SS No. XXX-XX-XXXX for all years inclusive."

That document has not been filed, nor if filed would it have any

bearing on this case.

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

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 that the taxpayer alleges to have been committed by the

Commissioner in the determination of the deficiency and the

additions to tax 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
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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,

supra at 658 n.19; 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 indicated by the passages

of the petition and Objection 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).   No facts

supporting a "nonresident alien" finding have been alleged.

Further, petitioner did not appear at the call of this case for

hearing on respondent's motion, but purported to revoke his

signature on all previously filed Forms 1040.   We see no need to

catalog petitioner's contentions and painstakingly address them.
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We have dealt with many of them before.   E.g., 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).   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 shall grant respondent's motion

to dismiss.   See Scherping v. Commissioner, 747 F.2d 478 (8th

Cir. 1984).

     We turn now to respondent's request for the award of a

penalty against petitioner 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 petitioner was

not interested in disputing the merits of either the deficiency

in income tax or the additions to tax determined by respondent in

the notice of deficiency.   Rather, the record demonstrates that
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petitioner regards this case as a vehicle to protest the tax laws

of this country and espouse his 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).    Petitioner's position consists solely of tax protester

rhetoric and legalistic gibberish.      Based on well established

law, petitioner's position is frivolous and groundless.      We are

also convinced that petitioner 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, cases of taxpayers with genuine

controversies were delayed.    In view of the foregoing, we shall

exercise our discretion under section 6673(a)(1) and require

petitioner to pay a penalty to the United States in the amount of

$5,000.    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, 82 T.C. 403,

408-411 (1984).    To reflect the foregoing,


                                               An order of dismissal

                                        and decision will be entered.
