                          T.C. Memo. 2005-275



                      UNITED STATES TAX COURT



                DEVERY W. HENNARD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17170-04.                  Filed November 28, 2005.



     Devery W. Hennard, pro se.

     Adam L. Flick, for respondent.



                          MEMORANDUM OPINION


     WELLS, Judge:   This matter is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121.

All section references are to the Internal Revenue Code, as

amended, and all Rule references are to the Tax Court Rules of

Practice and Procedure.
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                             Background

     The facts in this case have been established by the Court’s

Order of March 10, 2005.1   At the time of filing the petition,

petitioner resided in Fort Worth, Texas.

     Petitioner worked as a contractor for Tuttle Roofing during

the 1998, 1999, 2000, and 2001 taxable years.   Tuttle roofing

paid petitioner $133,339 during 1998, $88,450 during 1999,

$117,905 during 2000, and $137,000 during 2001.   Petitioner also

earned $96 in savings bond interest from Nationsbank in 1998.

Petitioner did not make estimated tax payments, have tax

withheld, or file a Form 1040, U.S. Individual Income Tax Return,

for any of the taxable years 1998, 1999, 2000, or 2001.

     On April 19, 2004, respondent prepared, pursuant to section

6020(b), four substitute returns for petitioner after petitioner

failed to comply with respondent’s requests to file returns for

the four years in issue.    On June 18, 2004, respondent mailed to

petitioner at his last known address, 1216 Warden Street, Fort

Worth, Texas 76126, four statutory notices of deficiency

asserting deficiencies and additions to tax under sections


     1
       On Jan. 25, 2005, respondent filed a Motion to Show Cause
Why Proposed Facts in Evidence Should Not be Admitted as
Established pursuant to Rule 91(f). On Jan. 27, 2005, we granted
respondent’s motion and further ordered petitioner to file a
response in compliance with Rule 91(f)(2) or respondent’s
proposed stipulations would be deemed established and an order
would be entered pursuant to Rule 91(f)(3). Petitioner never
responded to our order, and we, accordingly, ordered the facts
deemed established on Mar. 10, 2005.
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6651(a)(1) (failure to file a return), 6651(a)(2) (failure to pay

tax shown on a return), and 6654 (failure to pay estimated income

tax) for the 1998, 1999, 2000, and 2001 taxable years as follows:

 Year       Deficiency    6651(a)(1)     6651(a)(2)      6654
 1998       $44,291         $9,965.48    $11,072.75    $2,010.24
 1999       $29,625         $6,665.63     $7,258.13    $1,422.71
 2000       $39,652         $8,921.70     $7,335.62    $2,132.64
 2001       $45,724        $10,287.90     $5,715.50    $1,809.44


     Petitioner timely filed a petition with this Court asserting

“all of his inalienable rights and commercial rights at Natural

Law, Common Law and Maritime Law, as well as any statutory rights

that may exist and apply.” and raised numerous typical tax

protester arguments including:

     (1) The Secretary, including the IRS, is not authorized
     to practice law in this state. Yet, every single
     publication, and practically every letter, includes
     statements that can be considered as nothing but the
     rendering of legal advice, especially regarding the
     accounting method applicable and thus the form suitable
     for using that accounting method. Whatever else this
     fact may support, the IRS has tendered legal advice to
     petitioner, giving rise, at the very least, to a
     definite conflict of interest. (2) The Secretary acts
     as a collection agent for an undisclosed principal,
     which principal is an unknown beneficiary of the
     alleged fiduciary obligation at issue. * * * Without a
     known beneficiary, petitioner has no fiduciary
     obligation.[2] (3) There being no principal amount due,
     there is no basis for penalties. (4) There being no


     2
       Petitioner warns respondent that it is a potentially
serious offense to use the United States Postal Service to
attempt to coerce an alleged fiduciary to divert funds from a
known beneficiary to an unknown beneficiary.
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     principal amount due, there is no basis for interest.
     (5) [The substitute Forms 1040] are not subscribed by
     the Secretary, per IRC 6020(b).[3] Petitioner will need
     to engage in a handwriting analysis during discovery to
     verify that this is not a machine-written signature,
     but is, rather, the signature of the human being to be
     charged with the responsibility of verifying the
     alleged figures. About the only way to cross-examine a
     computer is to have a complete printout, of the human-
     readable source code, of all modules used to produce
     these reports and statements.

Additionally, petitioner thanked the Secretary but respectfully

declined the Secretary’s “unsolicited, and bad, legal and

accounting advice”4 and asked to be placed on the “no call list”.

     Respondent filed a Motion for Summary Judgment on March 16,

2005.       On March 17, 2005, we ordered petitioner to file a

response to respondent’s motion on or before April 18, 2005.

Petitioner has not filed a response and did not appear at the

call of the instant case for trial on May 2, 2005, in Dallas,

Texas.


        3
       Whether the substitute Forms 1040 qualify as returns under
sec. 6020(b) for purposes of the sec. 6651(a)(2), failure to pay,
addition to tax is discussed below.
        4
            In regard to the Secretary’s “advice” petitioner states:

        The Secretary’s proposed accounting method, Form 1040,
        while applicable, is not as complete or accurate as the
        accounting method preferred by petitioner. The
        commonly available form most competently applicable to
        the alleged obligation is Form 1041. By applying more
        suitable accounting methods, Petitioner’s distribution
        amount, if any, is considerably less than that asserted
        by the collections agent. By Petitioner’s analysis,
        the amount due is $0.

Form 1041 is the U.S. Income Tax Return for Estates and Trusts.
                                - 5 -

                             Discussion

       Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.     Fla. Peach Corp. v.

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

granted where there is no genuine issue of material fact and a

decision may be rendered as a matter of law.    Rule 121(a) and

(b).    The moving party bears the burden proving that there is no

genuine issue of material fact, and factual inferences are viewed

in a light most favorable to the nonmoving party.     Craig v.

Commissioner, 119 T.C. 252, 260 (2002); Dahlstrom v.

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

79 T.C. 340, 344 (1982).    The party opposing summary judgment

must set forth specific facts which show that a question of

genuine material fact exists and may not rely merely on

allegations or denials in the pleadings.     Grant Creek Water

Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988); Casanova

Co. v. Commissioner, 87 T.C. 214, 217 (1986).

       Petitioner has not set forth specific facts showing a

genuine issue of material fact exists.    Petitioner ignored our

order to file an answer to respondent’s motion and failed to

appear at trial.    The petition contains nothing but nonsensical

tax protester arguments that are frivolous, and we do not address

petitioner’s arguments with somber reasoning and copious

citations of precedent, as to do so might suggest that
                                 - 6 -

petitioner’s arguments possess some degree of colorable merit.

See Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).

     Section 6651(a)(2) provides for an addition to tax in

instances where there is a failure to pay the amount of tax shown

on a return, and it applies only when an amount of tax is shown

on a return.    Cabirac v. Commissioner, 120 T.C. 163, 170 (2003).

Petitioner did not file valid returns for the years in issue, and

respondent prepared substitute returns pursuant to section

6020(b).   Under section 6651(g)(2), a return prepared by the

Secretary under section 6020(b) is treated as the return filed by

the taxpayer for purposes of determining an addition to tax under

6651(a)(2).    Cabirac v. Commissioner, supra at 170.   In Millsap

v. Commissioner, 91 T.C. 926 (1988), we held that an unsubscribed

Form 1040, together with attached revenue agent’s reports which

contained sufficient information to compute the tax liability,

met the requirements for a section 6020(b) return.      Id. at 930.

The record in the instant case contains: unsubscribed Forms 1040;

copies of the revenue agent’s reports from which petitioner’s tax

liability could be calculated; and a Form 13496, IRC Section

6020(b) Certification, signed by Carolyn Levy, respondent’s

examination operation manager.    We find the substitute Forms 1040

meet the requirements of section 6020(b).   Accordingly,

respondent is entitled to summary judgment.
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     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.   Although we will not impose a penalty on petitioner

in this case, we will take this opportunity to admonish

petitioner that the Court will consider imposing such a penalty

should he return to the Court and advance similar arguments in

the future.

     To reflect the foregoing,


                                          An appropriate order and

                                     decision will be entered for

                                     respondent.
