                         T.C. Memo. 2000-169



                       UNITED STATES TAX COURT



          DAVID R. AND DARLENE FUNK, ET AL.,1 Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket Nos. 18510-99, 1366-00,             Filed May 23, 2000.
                  1367-00, 1368-00,
                  1369-00, 1370-00,
                  1371-00.



      David R. Funk and Darlene Funk, pro se in docket No. 18510-

99.

      Richard Marks (an officer), for petitioners in docket Nos.

1366-00 through 1371-00.


      1
        Cases of the following petitioners are consolidated
herewith: David R. Funk, DC, Trust, Caribe Corp., Trustee,
docket No. 1366-00; DF2 Management, Trust, Caribe Corp., Trustee,
docket No. 1367-00; Odessa Properties, Trust, Caribe Corp.,
Trustee, docket No. 1368-00; D & D Leasing, Trust, Caribe Corp.,
Trustee, docket No. 1369-00; Computer Training Center, Trust,
Caribe Corp., Trustee, docket No. 1370-00; and Darlene Funk,
Trust, Caribe Corp., Trustee, docket No. 1371-00.
                                   - 2 -



     Jeremy L. McPherson, for respondent.



                          MEMORANDUM OPINION



     COHEN, Chief Judge:       This case was assigned to Chief Special

Trial Judge Peter J. Panuthos pursuant to the provisions of

section 7443A(b)(5).    Unless otherwise indicated, section

references are to the Internal Revenue Code as amended, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.   The Court agrees with and adopts the opinion of the

Special Trial Judge, which is set forth below.

                  OPINION OF THE SPECIAL TRIAL JUDGE

     PANUTHOS, Chief Special Trial Judge:        Respondent determined

deficiencies in petitioners’ Federal income tax for the taxable

year 1995, additions to tax, and penalties as follows:

                                   Addition to Tax      Penalty
     Docket No.    Deficiency      Sec. 6651(a)(1)    Sec. 6662(a)

      18510-99      $196,211         $9,780.75        $39,242.20
      1366-00         53,503          2,675.00         10,701.00
      1367-00         22,951          1,148.00          4,590.00
      1368-00          9,105            455.00          1,821.00
      1369-00            574             29.00            115.00
      1370-00        114,727          5,736.00         22,945.00
      1371-00          4,453            223.00            891.00

Background

     These cases are before the Court on respondent’s motions to

dismiss for failure to state a claim and to impose a penalty
                                - 3 -

under section 6673.    In docket Nos. 1366-00 through 1371-00,

respondent filed a supplement to the motion to dismiss wherein

respondent noted that the respective dockets were related to the

lead docket No. 18510-99.    A hearing was held with respect to the

motions filed in the respective dockets.

     The notice of deficiency issued to petitioners David R. and

Darlene Funk in docket No. 18510-99 determined that petitioners

failed to report various items of gross income including Schedule

E, Supplemental Income and Loss, rental and royalty income.

Also, respondent determined that petitioners must include on

their individual return self-employment income reflected on trust

income tax returns which were the subject matter of the related

dockets.   The notices of deficiency in the trust cases (docket

Nos. 1366-00 through 1371-00) indicate that, although income was

reported on respective trust returns, a zero tax liability was

reflected as a result of claimed deductions equaling or exceeding

the income reported.    The notices of deficiency issued to the

trusts disallowed Schedule C, Profit or Loss From Business,

expenses claimed on the trust returns.2


     2
        We cannot determine from this record whether respondent
seeks to impose a tax on the same income against both the trusts
and the individuals. To the extent respondent has taken a
position in the notice of deficiency issued to petitioners David
and Darlene Funk inconsistent with the position in the notices of
deficiency issued to the trusts, we shall issue an order under
Rule 155 directing respondent to provide computations in all
dockets that reflect consistent treatment of income and
                                                   (continued...)
                                 - 4 -

     At the time the petition was filed in docket No. 18510-99,

petitioners David R. and Darlene Funk resided at Rocklin,

California.   At the time of filing the petitions in docket Nos.

through 1366-00 through 1371-00, the officer of the trustee of

the respective trusts, Richard Marks, resided at Rocklin,

California.

     Respondent asserts in his motions that each of the

respective dockets should be dismissed for failure to state a

claim on the basis that petitioners have failed to allege in the

respective petitions or amended petitions any justiciable error

and that they merely assert frivolous arguments as a protest

against paying taxes.

     Paragraph 4 of the petition in each of these cases contained

as a basis for disagreement with the notice of deficiency

identical language as follows:

     The District Director issued a Statutory Notice of
     Deficiency claiming petitioner has a tax liability
     without there being a statutorily procedural correct
     lawful tax assessment. Attached to the Notice of
     Deficiency, IRS Form 4549A, income tax examination
     changes, line 11 states, “Total Corrected Tax
     Liability.” Respondent has failed to provide the
     petitioners with internal revenue code sections or
     regulations this total corrected tax liability was
     calculated or assessed under. The respondent has
     refused to provide the petitioners with a Summary
     Record of Assessment as per Internal Revenue Regulation
     301.6203-1. Respondent has failed to properly sign the
     Notice of Deficiency as required under IRC Section


     2
      (...continued)
deductions.
                                - 5 -

     6065. There can be no meaningful administrative
     hearing until respondent provides petitioners with the
     requested information, and until that time, petitioner
     will disagree with all of the adjustments.

     After the filing of respondent’s motions, the Court issued

orders providing the respective petitioners an opportunity to

file an amended petition.   The Court directed petitioners to set

forth with specificity each error they allege was made by

respondent in the determination of the deficiency and separate

statements of fact upon which petitioners base the assignment of

each error.   An amended petition was filed in each docket.   The

amended petitions, which are virtually identical in each docket,

do not assert any justiciable claims.   Petitioners assert in each

of the amended petitions the issues presented as follows:

     1.   Where is the missing Internal Revenue Code Section
     that caused a tax liability?

     2.   Where is the Statutory Procedurally Correct Lawful
     Assessment?

     3.   Where is Discovery?

     4.   Should Respondent be Sanctioned?

Discussion

     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
                                - 6 -

facts on which the taxpayer bases the assignments of error.      See

Jarvis v. Commissioner, 78 T.C. 646, 658 (1982).

     The petitions and amended petitions filed in these cases do

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 frivolous

rhetoric and legalistic gibberish, as demonstrated by the summary

of the petitions provided above.   Under the circumstances, we see

no need to catalog petitioners' arguments and painstakingly

address them.    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 (5th Cir. 1984); see also

Hansen v. Commissioner, 820 F.2d 1464 (9th Cir. 1987); Grimes v.

Commissioner, 806 F.2d 1451 (9th Cir. 1986).

     In docket No. 18510-99, petitioners filed a motion to

dismiss for lack of jurisdiction, a motion to compel discovery,

and an application for order to take depositions.    We denied

these motions.   Petitioners’ primary argument was that respondent

failed to explain the basis for the determination and also that

there is no lawful, proper assessment.    In docket Nos. 1366-00

through 1371-00, petitioners also filed motions to dismiss for

lack of subject matter jurisdiction.    The assertions in those
                               - 7 -

motions are virtually identical with those made in docket No.

18510-99.   We shall deny the motion in each docket.

     When the cases were called for hearing, petitioners asked

for a continuance to provide additional time to pursue discovery.

The stated purpose of the discovery was to ascertain information

with respect to the “correctness of the dollar amount, or

additional tax liability that the district [director] * * * used

to make his determination” and the failure of that individual to

“identify the IRS code section or regulation that the notice of

deficiency determination was based on”.    We denied the oral

motions to continue since they were essentially repetitive of

petitioners’ prior written motions.

     The notices of deficiency in these cases make determinations

based on tax returns filed by petitioners.    As such, petitioners’

reliance on Scar v. Commissioner, 814 F.2d 1363 (9th Cir. 1987),

revg. 81 T.C. 855 (1983), is misplaced.    In Scar, the parties

agreed that the notice of deficiency had no relationship to the

taxpayer’s return.   Petitioners’ argument that the determination

of a deficiency without a “statutorily procedural correct lawful

assessment” is likewise misplaced.     Once a notice of deficiency

has been issued, a taxpayer has 90 days in which to file a

petition with this Court.   During this period, no assessment for

the deficiency may be made, and no levy or proceeding in court
                                - 8 -

for its collection can be begun or, if a petition is filed, until

a decision of this Court is final.      See sec. 6213(a).

     Because the petitions fail to state a claim upon which

relief can be granted, we shall grant respondent's motion to

dismiss in each docket.   See Rules 34(a)(1), 123(b); Scherping v.

Commissioner, 747 F.2d 478 (8th Cir. 1984).

Section 6673

     We now consider that part of respondent’s motions that seeks

an award of a penalty against petitioners under section 6673(a).

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 proceedings is frivolous or

groundless.

     A petition is frivolous if it is contrary to established

law, or unsupported by a reasoned, colorable argument for change

in the law.    See Coleman v. Commissioner, 791 F.2d 68, 71 (7th

Cir. 1986), affg. an order of this Court.

     A review of the record in these cases satisfies us that

petitioners are not interested in disputing the merits of the

deficiencies, additions to tax, or penalties.      Petitioners appear

to regard these cases as a vehicle to present their views.     The
                                 - 9 -

Court’s time and resources have been wasted, and we are convinced

that petitioners maintained this proceeding primarily for delay.

     In view of the foregoing we shall exercise our discretion

under section 6673(a)(1) and require petitioners David R. and

Darlene Funk (docket No. 18510-99) to pay a penalty to the United

States in the amount of $3,000.    We shall also require each

petitioner in docket Nos. 1366-00 through 1371-00 to pay a

penalty to the United States in the amount of $1,000 each.

     To reflect the foregoing,

                                              An appropriate order

                                         will be issued.3




     3
        As previously indicated, the Court will order respondent
to provide a computation in all dockets which reflects consistent
treatment of income in these related dockets.
