                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT           FILED
                    ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              MARCH 21, 2012
                           No. 11-10507
                                                                JOHN LEY
                       Non-Argument Calendar
                                                                 CLERK
                     ________________________

                         Agency No. 20370-09


WALTER JESSE LAWRENCE,

                                                                    Petitioner,

                                    versus

COMMISSIONER OF IRS,

                                                                   Respondent.

                     ________________________

                 Petition for Review of a Decision of the
                         United States Tax Court
                      ________________________

                            (March 21, 2012)


Before EDMONDSON, HULL and PRYOR, Circuit Judges.


PER CURIAM:
       Walter Jesse Lawrence appeals the tax court’s decision in favor of the

Commissioner of the Internal Revenue Service (“IRS”) on Lawrence’s pro se

petition for redetermination of deficiency for tax years 2003, 2004, and 2005.1 No

reversible error has been shown; we affirm.

       Lawrence filed a petition in tax court challenging the Commissioner’s

notices of deficiency, which alleged that -- based on Lawrence’s unreported

pension and social security income -- Lawrence owed a total of $4570.46 in

deficiencies and filing penalties for tax years 2003, 2004, and 2005. In his

petition, Lawrence argued that his pension and social security benefits for those

years did not constitute taxable income because they were paid directly to the IRS

pursuant to an IRS levy imposed in 1999 to recover his outstanding income taxes.

Lawrence also alleged that, because his pension and social security benefits were

exempted from creditors during his later bankruptcy proceedings, the IRS levy

was invalid and violated his Fifth Amendment rights.




   1
    We review the tax court’s legal conclusions de novo and its factual findings for clear error.
Creel v. Comm’r of Internal Revenue, 419 F.3d 1135, 1139 (11th Cir. 2005).

                                               2
       After a bench trial, the tax court rejected Lawrence’s claimed errors.2 The

tax court noted that Lawrence bore the burden of proof, pursuant to I.R.C. §

7491(a), because the issues before the court were not factual in nature and because

Lawrence failed to establish that he cooperated with the IRS during his audit. The

court also determined that it lacked jurisdiction to consider the validity of the IRS

levy on Lawrence’s pension and social security benefits. The tax court then

concluded that Lawrence’s disputed pension and social security benefits

constituted taxable income and upheld the Commissioner’s deficiency

determination.

       As an initial matter, the tax court’s decision not to shift the burden of proof

to the Commissioner was proper. Pursuant to section 7491(a), if “a taxpayer

introduces credible evidence with respect to any factual issue relevant to

ascertaining the liability of the taxpayer for any tax imposed . . . , the

[government] shall have the burden of proof with respect to such issue.” I.R.C. §

7491(a). Lawrence argues that the IRS account transcripts -- which indicated that

   2
     The tax court denied properly Lawrence’s pre-trial motions to dismiss for lack of jurisdiction
and for default. Because Lawrence filed a petition for a redetermination of his tax deficiencies in
tax court and nothing evidenced that the Commissioner had changed his position about Lawrence’s
tax liability, the tax court had jurisdiction to redetermine the amount of the alleged deficiencies. See
I.R.C. § 6214(a). Moreover, nothing evidences that the Commissioner agreed to attend a settlement
conference on Lawrence’s suggested date or that the Commissioner otherwise failed to engage in
settlement discussions required by Tax Court R. 70(a)(1). Thus, the tax court did not abuse its
discretion in denying Lawrence’s motion for default.

                                                   3
Lawrence had no adjusted gross income for the 2003, 2004, and 2005 tax years --

constituted credible evidence sufficient to shift the burden of proof to the IRS. As

the tax court noted, however, the Commissioner was prohibited legally from

assessing a deficiency against Lawrence until after the tax court issued a final

decision. See I.R.C. § 6213(a). Thus, that the disputed deficiencies were omitted

from the account transcripts is not pertinent to the issue of Lawrence’s tax

liability. Because Lawrence failed to introduce credible evidence about his tax

liability, he retained the burden of proof under section 7491(a).

      On appeal, Lawrence reasserts that, based on the IRS levy, his 2003, 2004,

and 2005 pension and social security benefits did not constitute taxable income

because he lacked “complete dominion” over those payments. We disagree.

Pension and social security benefits are generally considered “gross income” for

purposes of federal income tax. See I.R.C. § 61(a)(11) (defining “gross income”

to include “all income from whatever source derived, including . . . pensions”);

I.R.C. § 86(a) (describing the portion of social security benefits that may be

considered “gross income”). It is also well-established that when an employer

makes direct payments to the IRS on behalf of an employee -- either voluntarily or

involuntarily -- such payments constitute taxable income to the employee. See

Old Colony Trust Co. v. Comm’r of Internal Revenue, 49 S.Ct. 499, 504 (1929)

                                          4
(concluding that the employer’s direct payment to the IRS of the income tax due

on an employee’s salary constituted taxable income and that it was “immaterial

that the taxes were directly paid over to the [g]overnment”); Doose v. Comm’r of

Internal Revenue, 99 T.C.M. (CCH) 1088 (T.C. 2010) (concluding that the portion

of a taxpayer’s wages paid directly to the IRS as a result of a tax levy constituted

taxable income to the taxpayer).

      Lawrence was entitled to retirement benefits under his former employer’s

pension plan and under social security during the 2003, 2004, and 2005 tax years.

That those payments were made directly to the IRS as a result of Lawrence’s IRS

levy is “immaterial” to the issue of whether they constituted taxable income.

      AFFIRMED.




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