                        T.C. Memo. 2001-98



                      UNITED STATES TAX COURT



                  DALE I. DIRKES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11924-98.                    Filed April 24, 2001.



     Dale I. Dirkes, pro se.

     Frederick W. Krieg, for respondent.



                        MEMORANDUM OPINION

     DAWSON, Judge:   This case was assigned to Special Trial

Judge Daniel J. Dinan pursuant to the provisions of section

7443A(b)(5).1   The Court agrees with and adopts the opinion of

the Special Trial Judge, which is set forth below.


     1
          Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the year in issue. Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 2 -



                 OPINION OF THE SPECIAL TRIAL JUDGE

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

on respondent’s Motion for Summary Judgment filed pursuant to

Rule 121(a).    Petitioner filed Petitioner’s Objection to

Respondent’s Motion for Summary Judgment.    As explained below, we

will grant respondent’s Motion for Summary Judgment.

                           Background

     On April 7, 1998, respondent mailed a notice of deficiency

to petitioner determining a deficiency in his Federal income tax

for 1993 of $71,280 and additions to tax pursuant to section

6651(a)(1) and section 6654(a) of $13,143 and $2,115.63,

respectively.    Respondent determined that petitioner failed to

timely file his income tax return for the year in issue, failed

to pay estimated taxes, and failed to report the following

amounts includable in income:

          Capital gain                       $137,835
          Interest                                 13
          Prior year refund                       227
          Wages                               103,582

Respondent also determined that petitioner was entitled to a

standard deduction of $3,100 and that petitioner’s filing status

was “married filing separate return”.
                                - 3 -

     Petitioner timely filed his petition with the Court on July

6, 1998.   In his petition, petitioner alleged, in pertinent part:

          4. The determination of the tax set forth in said
     notice of deficiency is based upon the following
     errors:

                A. The Commissioner has erroneously
           alleged that the petitioner received two
           hundred forty-one thousand, six hundred and
           fifty-seven dollars, ($241,657), as total
           income.

                B. The Commissioner has erroneously
           alleged that the petitioner received a
           capital gain of one hundred thirty-seven
           thousand, eight hundred and thirty-five
           dollars, ($137,835).

                *     *     *     *     *     *    *

                D. The Commissioner has erroneously
           alleged that the petitioner owes a
           delinquency penalty pursuant to Internal
           Revenue Code §6651(a)(1) in the amount of
           thirteen thousand, one hundred and forty-
           three dollars, ($13,143).

                E. The Commissioner has erroneously
           alleged that petitioner owes a penalty of two
           thousand, one hundred fifteen dollars and
           sixty-three cents ($2,115.63), for failure to
           file adequate quarterly estimates pursuant to
           Internal Revenue Code §6654.

Further, petitioner alleges:

          5. The facts upon which the petitioner relies, as
     the basis of the petitioner’s case, are as follows:

                A. To the best of petitioner’s
           information, knowledge and belief, the
           petitioner’s total income was approximately
           one hundred three thousand, eight hundred
           seventy-seven dollars and twenty-four cents,
           ($103,877.24). This is the sum of the
           following:
                                - 4 -

          Approximate base salary:              $70,174.14
          Deferred compensation plan:               224.97
          Incentive Stock Option (ISO):          33,183.75
          Interest:                                  13.38
          Wages for sports officiating:              54.00
          Federal income tax refund:                227.00
               Total                            103,877.24

          See exhibits B, C, D, and E.[2]

                *     *     *      *        *   *     *

               C. The petitioner’s failure to file
          federal income tax returns in a timely manner
          is not due to or resultant from willful
          neglect.

               D. The petitioner’s failure to file
          federal income tax returns in a timely manner
          is due to and resultant from reasonable
          cause.

     In his Motion for Summary Judgment respondent, for the

purpose of this motion, concedes the capital gain adjustment in

the statutory notice of deficiency in the amount of $137,835

(Adjustment I.A.) and the sections 6651(a)(1) and 6654(a)

additions to tax.




     2
          Exhibit B consists of four copies of Forms W-2, Wage
and Tax Statement, issued by MCI Communications Corp. to
petitioner for 1993. These Forms W-2 show that petitioner
received wages, tips and other income totaling $103,582.86. This
amount included deferred compensation plan income of $224.97 and
incentive stock options of $33,183.75. Exhibit C is a Form 1099-
INT issued by Community Credit Union to petitioner for 1993
showing that he received interest income of $13.38. Exhibit D is
a Texas Sports Officials, Inc. Officiating Pay Summary showing
that petitioner was paid $54 in 1993. Exhibit E is a Kentucky
Form 1099-G showing that petitioner received a State tax refund
of $227 in 1993.
                                - 5 -

     The statutory notice of deficiency allowed a standard

deduction of $3,100 for 1993 (Adjustment I.D.) because petitioner

had not filed a 1993 Form 1040, U.S. Individual Income Tax

Return.   Subsequently, petitioner substantiated itemized

deductions of $10,880 for an increased deduction of $7,780 over

the statutory notice standard deduction, and respondent concedes

that amount.

     The statutory notice of deficiency allowed one exemption and

determined that petitioner’s tax liability was to be determined

using “married filing separate return” tax rates.   Petitioner’s

petition assigned no error to these determinations.

                           Discussion

     Summary judgment is appropriate “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); Naftel v. Commissioner, 85 T.C. 527,

529 (1985).    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); Espinoza v.

Commissioner, 78 T.C. 412, 415-416 (1982).    The moving party

bears the burden of proving that there is no genuine issue of
                               - 6 -

material fact, and factual inferences will be made in a manner

most favorable to the party opposing summary judgment.    See

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

     As previously discussed, the issues framed by the pleadings

in this case are:   (1) Whether petitioner failed to report

capital gain of $137,835; (2) whether petitioner failed to report

interest income of $13; (3) whether petitioner should have

reported as income a $227 State tax refund; (4) whether

petitioner failed to report wages of $103,582; (5) whether

petitioner is liable for an addition to tax pursuant to section

6651(a)(1) of $13,143; and (6) whether petitioner is liable for

an addition to tax pursuant to section 6654(a) of $2,115.63.

     As we have stated, supra, respondent for the purpose of his

motion, concedes the capital gain adjustment of $137,835.

     Petitioner admits having received interest income of $13

(petition par. 5.A.).

     Petitioner admits having received a (state) tax refund of

$227 (petition par. 5.A.).

     Petitioner admits having received wages of $103,636.86

(petition par. 5.A.).3




     3
          Included in petitioner’s income figure of $103,636.86
is $54 for sports officiating. The $54 is not included in
respondent’s “wages” adjustment of $103,582, and respondent does
not assert a claim for the amount.
                                 - 7 -

     Respondent concedes that petitioner is not liable for an

addition to tax pursuant to section 6651(a)(1).

     Respondent concedes that petitioner is not liable for an

addition to tax pursuant to section 6654(a).

                           Conclusion

     For the reasons stated herein, we find and hold that there

is no genuine issue as to any material fact remaining for

litigation in this case and that a decision may be rendered as a

matter of law.

     To reflect the foregoing,

                                              An order granting

                                         respondent’s motion for

                                         summary judgment will be

                                         issued, and decision will

                                         be entered pursuant to

                                         Rule 155.
