                         T.C. Memo. 2004-245



                       UNITED STATES TAX COURT



                 DELINDA VIANNE ROGERS, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1803-00.                Filed October 27, 2004.


     DeLinda ViAnne Rogers, pro se.

     Aimee R. Lobo-Berg, for respondent.



                          MEMORANDUM OPINION


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

on respondent’s motion for summary judgment, filed pursuant to

Rule 121.1    The sole issue for decision is whether petitioner, an




     1
        All Rule references are to the Tax Court Rules of
Practice and Procedure, and all section references are to the
Internal Revenue Code in effect at relevant times.
                                - 2 -

inmate at a penal institution, is entitled to an earned income

credit for taxable year 1998.

                             Background

     Petitioner was incarcerated at the Federal Correctional

Institution in Dublin, California, throughout the taxable year

1998.   While she was an inmate, petitioner was employed by

Unicor-Federal Prison Industries.    For her services, petitioner

earned wages of $1,658.48 in 1998.

     Petitioner reported these wages on her 1998 Federal income

tax return.    She reported no other income for 1998.   Petitioner

claimed the standard deduction of $6,950 and, consequently,

reported no tax liability for 1998.     Petitioner claimed an earned

income credit of $128 on her 1998 return and sought a refund in

that amount.

     On December 10, 1999, respondent issued a notice of

deficiency to petitioner with respect to petitioner’s 1998 tax

return.   In the notice of deficiency, respondent disallowed

petitioner’s claimed earned income credit and determined a

deficiency in the amount of $128.    The notice of deficiency

includes a statement that amounts paid to inmates in penal

institutions for their work are not earned income for purposes of

computing the earned income credit.
                                - 3 -

                            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 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); see 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).

     An eligible individual is allowed an earned income credit

for the taxable year in an amount equal to the credit percentage

of so much of the taxpayer’s earned income as does not exceed the

earned income amount.   Sec. 32(a).     Earned income includes wages,

salaries, tips, and other employee compensation.     Sec.

32(c)(2)(A)(i).   However, section 32(c)(2)(B) excludes certain
                              - 4 -

items from the definition of earned income.   Specifically,

section 32(c)(2)(B)(iv) provides that “no amount received for

services provided by an individual while the individual is an

inmate at a penal institution shall be taken into account” in

determining a taxpayer’s earned income.

     In respondent’s motion for summary judgment, respondent

contends that section 32(c)(2)(B)(iv) is dispositive in this case

as all the wages petitioner earned during 1998 were received for

services provided while she was an inmate at a penal institution.

In her opposition to summary judgment, petitioner argues that her

wages should not be subject to section 32(c)(2)(B)(iv) because

she performed most of her services at a location outside of the

penal institution and that her employment was voluntary and not

mandated by the terms of her sentence.2

     For the reasons stated below, we agree with respondent.

Section 32(c)(2)(B)(iv) expressly excludes from the computation

of the earned income credit all wages for services earned by a

taxpayer while he or she is an inmate at a penal institution.

Wilson v. Commissioner, T.C. Memo. 2001-139; Taylor v.

Commissioner, T.C. Memo. 1998-401.    The sole inquiry is whether a

taxpayer earned income while he or she was an inmate at a penal


     2
        In her opposition to summary judgment, petitioner alleges
that she was sentenced under the Comprehensive Crime Control Act
of 1972, as amended in 1984, and was not mandated to work under
the terms of the Mandatory Work Requirement for All Prisoners, as
enacted in 1990.
                               - 5 -

institution; other factors, such as the status of the payor as

either a public or private entity, are irrelevant.     See Wilson v.

Commissioner, supra.

     In construing a statute, courts generally seek the plain and

literal meaning of its language.   See United States v. Locke, 471

U.S. 84, 93, 95-96 (1985); United States v. Am. Trucking

Associations, Inc., 310 U.S. 534, 543 (1940); Wilson v.

Commissioner, supra.   Under the plain and literal language of

section 32(c)(2)(B)(iv), it makes no difference whether

petitioner performed services at a location outside the penal

institution or whether her performance of services was voluntary

or compulsory.   Petitioner was an inmate at a penal institution

throughout taxable year 1998, and all her wages received during

that year are excluded from the computation of the earned income

credit as a matter of law under section 32(c)(2)(B)(iv).

     Because there are no genuine issues of any material fact,

respondent’s motion for summary judgment will be granted.

To reflect the foregoing,

                                            An order and decision

                                       will be entered granting

                                       respondent’s Motion for

                                       Summary Judgment and

                                       entering decision for

                                       respondent.
