                               T.C. Memo. 2014-28



                        UNITED STATES TAX COURT



                 DAVID K. WINTERROTH, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 13833-12.                         Filed February 12, 2014.



      David K. Winterroth, pro se.

      Fred Edward Green, Jr., for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      FOLEY, Judge: The issues for decision are whether petitioner is liable for

income tax deficiencies relating to 2008, 2009, and 2010 (years in issue);
                                         -2-

[*2] additions to tax pursuant to sections 6651(a)(1) and (2) and 6654; and a

section 6673 penalty.1

                               FINDINGS OF FACT

      In 2008, 2009, and 2010 petitioner received wages from Republic Services

of $57,519, $58,593, and $58,479, respectively. In 2009, petitioner received an

individual retirement account (IRA) distribution of $2,000. Petitioner did not file

Federal income tax returns or pay taxes relating to the years in issue, and

respondent prepared substitutes for returns (SFRs) relating to these years. On

February 27, 2012, respondent sent petitioner a notice of deficiency and

determined deficiencies of $8,488, $8,794, and $8,063 relating to 2008, 2009, and

2010, respectively. In addition, respondent determined that petitioner was liable

for section 6651(a)(1) and (2) additions to tax relating to the years in issue and

section 6654 additions to tax relating to 2008 and 2009. On May 31, 2012,

petitioner, while residing in Nevada, timely filed a petition with the Court. At

trial, on October 30, 2013, respondent moved for the imposition of a section 6673

penalty.




      1
      Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect during the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
                                          -3-

[*3]                                   OPINION

       Petitioner contends that he has no Federal income tax liability but admits

that he received from Republic Services compensation of $57,519, $58,593, and

$58,479 relating to 2008, 2009, and 2010, respectively.2 In addition, respondent

established that petitioner received an IRA distribution of $2,000 relating to 2009.

See Weimerskirch v. Commissioner, 596 F.2d 358, 360-362 (9th Cir. 1979)

(holding that the Commissioner’s determination relating to unreported income is

presumed correct where it is supported by a “minimal evidentiary foundation”),

rev’g 67 T.C. 672 (1977). Therefore, petitioner had income of $57,519, $60,593,

and $58,479 relating to 2008, 2009, and 2010, respectively, and was required to

file tax returns relating to these years. See secs. 61(a), 6011(a), 6012(a).

       Section 6651(a)(1) and (2) provides that a taxpayer shall be liable for

additions to tax for failure to timely file a return and failure to timely pay tax,

unless it is shown that such failure was due to reasonable cause and not willful

neglect. Pursuant to section 7491(c), respondent bears the burden of production


       2
       Pursuant to sec. 7491(a), petitioner has the burden of proof unless he
introduces credible evidence relating to the issue and satisfies certain other
requirements. See Rule 142(a). Our conclusions, however, are based on a
preponderance of the evidence, and thus the allocation of the burden of proof is
immaterial. See Martin Ice Cream Co. v. Commissioner, 110 T.C. 189, 210 n.16
(1998).
                                         -4-

[*4] relating to these additions to tax. See Higbee v. Commissioner, 116 T.C. 438,

446 (2001). Respondent established that petitioner failed to file his returns and

failed to pay the amounts shown on the 2008, 2009, and 2010 SFRs. See sec.

7491(c); Wheeler v. Commissioner, 127 T.C. 200, 206 (2006), aff’d, 521 F.3d

1289 (10th Cir. 2008). Petitioner’s failure to timely file returns and timely pay his

tax liabilities was the result of willful neglect and not reasonable cause. See sec.

6651(a)(1) and (2). Accordingly, he is liable for these additions to tax. See id.

      Respondent further determined that petitioner was liable for section 6654

additions to tax relating to 2008 and 2009. To satisfy his burden of production,

respondent must establish that petitioner was required, pursuant to section

6654(d)(1)(B), to make annual payments.3 See Wheeler v. Commissioner, 127

T.C. at 211. Respondent failed to establish that petitioner had a 2007 tax liability

and thus did not establish that petitioner was obligated to make a 2008 payment.

See id. With respect to 2009, however, respondent met his burden (i.e., he

established that petitioner did not file a 2008 return and was obligated, but failed,

to make the 2009 requisite payment). Accordingly, petitioner is not liable for a


      3
       Pursuant to sec. 6654(d)(1)(B), a required annual payment is generally
equal to the lesser of 90% of the tax shown for the subject taxable year (or, if no
return was filed, 90% of the tax for such year), or 100% of the tax shown on the
taxpayer’s return for the preceding year.
                                         -5-

[*5] section 6654 addition to tax relating to 2008 but is liable for a section 6654

addition to tax relating to 2009.

      Petitioner instituted this proceeding primarily for delay and, despite this

Court’s warnings, persistently asserted frivolous contentions. We therefore

impose a $10,000 section 6673(a)(1) penalty.

      Contentions we have not addressed are irrelevant, moot, or meritless.

      To reflect the foregoing,


                                                     An appropriate order and

                                               decision will be entered.
