                          T.C. Memo. 1998-199



                        UNITED STATES TAX COURT



            GERALD J. AND GAYLE R. MARTINEZ, Petitioners v.
              COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 19887-95.                      Filed June 1, 1998.



        Gerald J. Martinez, pro se.

        Louis John Zeller, Jr. and Emile L. Hebert III, for respon-

dent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:     Respondent determined the following defi-

ciencies in, and additions to, the Federal income tax (tax) of

petitioner Gerald J. Martinez (Mr. Martinez) for the years

indicated:
                                                 -2-

                                                     Additions to Tax
                       Sec.          Sec.          Sec.            Sec.           Sec.        Sec.
Year   Deficiency   6651(a)(1)1   6653(a)(1)   6653(a)(1)(A)    6653(a)(2)   6653(a)(1)(B)    6654

1982     $20,599     $5,150         $1,030           --              *            --         $2,005
1983      26,771      6,693          1,339           --              *            --          1,638
1984      29,989      7,497          1,499           --              *            --          1,885
1985      17,418      4,354            871           --              *            --            998
1986      14,821      3,705           --           $741             --            *             717
1987      16,221      4,055           --            811             --            *             871



* 50 percent of the interest due on the portion of the underpayment
attributable to negligence. Respondent determined that the entire
amount of the underpayment was attributable to negligence.

   Respondent determined the following deficiencies in, and addi-

   tions to, the tax of petitioner Gayle R. Martinez (Ms. Martinez)

   for the years indicated:

                                                       Additions to Tax

                       Sec.          Sec.           Sec.           Sec.          Sec.        Sec.
Year   Deficiency   6651(a)(1)    6653(a)(1)   6653(a)(1)(A)    6653(a)(2)   6653(a)(1)(B)   6654

1982    $20,599      $5,150        $1,030           --               *            --         $2,005
1983     23,433       5,858         1,172           --               *            --          1,434
1984     25,718       6,429         1,286           --               *            --          1,617
1985     12,745       3,186           637           --               *            --            730
1986      9,655       2,414          --           $483              --             *            467
1987     10,834       2,708          --            542              --             *            582


* 50 percent of the interest due on the portion of the underpayment
attributable to negligence. Respondent determined that the entire
amount of the underpayment was attributable to negligence.

           We must decide whether respondent's determinations for each

   of the years at issue should be sustained.                        We hold that they

   should.

   Background

           Some of the facts were orally stipulated and are so found.




   1
      All section references are to the Internal Revenue Code in
   effect for the years at issue. All Rule references are to the
   Tax Court Rules of Practice and Procedure.
                                -3-

     Mr. Martinez, who at all relevant times was an attorney, and

Ms. Martinez, his spouse, lived in Metairie, Louisiana, at the

time the petition was filed.

     Petitioners refused to file tax returns (returns) and pay

tax for the years at issue because of the decision of the Supreme

Court of the United States in Roe v. Wade, 410 U.S. 113 (1973).

Petitioners' refusal to file returns and pay tax for the years at

issue is grounded in their contention that their constitutional

rights will be violated because any tax that they might pay would

be used in part to fund abortions, which is contrary to the

teachings of their religion.

     Respondent issued separate notices of deficiency (notices)

to Mr. Martinez and to Ms. Martinez for 1982, 1983, and 1984 and

separate notices to them for 1985, 1986, and 1987.   In the

notices, respondent determined that, for the years at issue, each

petitioner had one or more of the following types of community

income/loss:   Capital gain/loss, interest income, rental in-

come/loss, employee compensation, nonemployee compensation,

partnership income/loss, dividend income, Schedule C net income,

and/or miscellaneous income.2   Respondent also determined that,

for the years at issue, each petitioner is entitled to itemized

deductions for certain community expenses and to a deduction for

2
   In the absence of adequate records for 1984, respondent
determined each petitioner's miscellaneous community income for
that year by reference to bank deposits, cash payments, and
personal and other nondeductible expenditures.
                                  -4-

one personal exemption.   In calculating the respective deficien-

cies determined in the notices, respondent applied the tax rates

applicable to married individuals filing separately.   Respondent

also determined that, for 1983 through 1987, Mr. Martinez is

liable for self-employment tax.

Discussion

     Petitioners bear the burden of proving that respondent's

determinations in the notices are erroneous.   Rule 142(a); Welch

v. Helvering, 290 U.S. 111, 115 (1933).

     Petitioners contend that they are not liable for tax for the

years at issue because, inter alia:

     3.   The exercise of petitioners' religion prevents
          them from supporting or cooperating with any per-
          son or organization engaged in allowing, recom-
          mending, encouraging, promoting. performing, or
          paying for abortion, or protecting or paying for
          the protection of people who allow, recommend,
          encourage, promote, perform, or pay for abortions.

     4.   The computation and payment of money to a person
          or organization engaged in allowing, recommending,
          encouraging, promoting. performing, or paying for
          abortion, or protecting or paying for the protec-
          tion of people who allow, recommend, encourage,
          promote, perform, or pay for abortions if [sic] a
          violation of petitioner's religion.

     5.   The Constitution of the United States guarantees
          petitioners' right to the free exercise of reli-
          gion. Article I of the Amendments to the Consti-
          tution.

     6.   An amendment [the 16th Amendment] to the United
          States Constitution that was not properly approved
          in accordance with provisions for amending the
          Constitution and is therefore improperly enforced
          is not superior to the guarantees provided in the
          First Amendment to the Constitution, in particu-
                                 -5-

           lar, the guarantee of the free exercise of reli-
           gion.

                 *     *   *    *      *   *   *

     10.   The The [sic] contents of the Internal Revenue
           Service Code and the methods employed by the In-
           ternal Revenue Service to force compliance with
           laws that violate the nature [sic] law and the
           conscience and religious convictions of a person
           violate the Constitutions [sic] and laws of the
           United States, in particular the due process
           clause of the Fifth Amendment and the equal pro-
           tection clause of the Fourteenth Amendment; and
           the RICO Statute.

We reject the reasons advanced by petitioners in support of their

position that they are not liable for tax for the years at issue.

In Adams v. Commissioner, 110 T.C. 137, 139 (1998), this Court

concluded that

     while petitioner's religious beliefs are substantially
     burdened by payment of taxes * * *, the Supreme Court has
     established that uniform, mandatory participation in the
     Federal income tax system, irrespective of religious belief,
     is a compelling governmental interest. * * * As a result,
     requiring petitioner's participation in the Federal income
     tax system is the only, and thus the least restrictive,
     means of furthering the Government's interest. * * * [Cita-
     tions omitted.]

See Hernandez v. Commissioner, 490 U.S. 680 (1989); United States

v. Lee, 455 U.S. 252 (1982).

     Petitioners further assert that they are not liable for tax

for the years at issue because respondent's "cause of action was

prescribed [sic]" when respondent mailed the notices on June 28,

1995.   We disagree.   Section 6501(c)(3) provides that, in the

case of failure to file a return, "the tax may be assessed, or a

proceeding in court for the collection of such tax may be begun
                                  -6-

without assessment, at any time."       Petitioners did not file a

return for any of the years at issue.       Consequently, the respec-

tive periods of limitations applicable to those years have not

expired.

     Petitioners also contend on brief:

     The tax returns for petitioners for the years 1982-1987
     were prepared by respondent using information summoned
     from petitioners and produced by them under protest.
     The deficiencies claimed by respondent for the years
     1982-1987 are based on the records seized from peti-
     tioners. Petitioners filed this appeal claiming the
     income attributed to them is not correct and that they
     were not granted the benefit of proper deductions and
     various elections, especially filing status. Petition-
     ers contend that their records were seized in violation
     of their right to privacy. Indeed, if a citizen has a
     right to privacy concerning sexual acts and the killing
     of an unborn child, petitioners have the right to
     privacy with regard to their income. Those records
     were used by respondent, despite petitioners' objec-
     tion, to * * * prepare tax returns. Petitioners dis-
     agree with the content of those returns. Petitioners
     have stated their objections. Respondent listed the
     person who prepared the returns as a witness, but did
     not call him to testify. There was no testimony or
     evidence introduced by respondent at the trial to
     substantiate income attributable to petitioners. In
     the absence of such testimony or evidence, the court
     must conclude that there are no deficiencies.

We reject petitioners' position.    Petitioners have not submitted

any evidence, such as the records which they provided to respon-

dent, that supports their general and conclusory contention that

respondent's income determinations, which they concede were based

on those records, are in error.    Nor have petitioners supported

on the record before us their general and conclusory assertion

that respondent incorrectly determined the deductions and elec-
                                 -7-

tions to which they claim they are entitled for the years at

issue.

     We also reject petitioners' specific contention that respon-

dent used the incorrect filing status in calculating the defi-

ciencies at issue.   Respondent issued separate notices to each

petitioner for the years at issue in which the respective defi-

ciencies were determined on the basis of applying tax rates for

married individuals filing separate returns.   Petitioners seem to

be claiming that they are entitled to use the tax rates applica-

ble to married individuals filing joint returns.   The record

establishes that petitioners did not file joint returns for the

years at issue.   Indeed, they filed no returns for those years.

They jointly filed a petition with this Court contesting the

determinations in the notices.   Based on the record before us, we

find that petitioners have not shown that the filing status used

by respondent in the notices is incorrect.   We further find that

petitioners are not entitled to use the tax rates applicable to

married individuals filing joint returns.

     Petitioners contend that they are not liable for the addi-

tions to tax determined by respondent for the years at issue

because their religious beliefs, to which they sincerely adhere,

precluded them from filing returns and paying tax for those

years.   They also maintain that they have been "persecuted" for

their failure to file returns and pay tax.   On the instant

record, we find that petitioners have not satisfied their burden
                               -8-

of establishing that respondent's determinations under sections

6651, 6653(a), and 6654 are erroneous.    See Adams v. Commis-

sioner, supra.3

     Based on our examination of the entire record before us, we

find that petitioners have not satisfied their burden of showing

error in any of respondent's determinations in the notices.4



                                          Decision will be entered

                                     for respondent.




3
   See also Lull v. Commissioner, T.C. Memo. 1978-74, affd. per
curiam 602 F.2d 1166 (4th Cir. 1979).
4
   We have considered all of petitioner's arguments that are not
discussed herein, and we find them to be without merit.
