                        T.C. Memo. 2003-105



                      UNITED STATES TAX COURT



                 ROBERT RODRIGUEZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13645-01.            Filed April 17, 2003



     Robert Rodriguez, pro se.

     Jonae A. Harrison, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioner petitioned the Court to redetermine

respondent’s determinations of deficiencies in petitioner’s 1994,

1995, and 1996 Federal income taxes and additions thereto.   These

determinations are as follows:
                                       -2-

                                             Additions to Tax
   Years       Deficiencies    Sec. 6651(a)(1)   Sec. 6651(a)(2)    Sec. 6654(a)

      1994       $1,449           $333.50             --                --
      1995        2,711            669.75             --              $146.01
      1996        2,573            505.12           $527.57            117.51

       Section references are to the applicable versions of the
Internal Revenue Code.         Rule references are to the Tax Court

Rules of Practice and Procedure.

       We decide:

       1.    Whether petitioner had unreported income of $15,287,

$24,471, and $23,701 determined by respondent for the respective

years.       We hold he did.

       2.    Whether petitioner is liable for the additions to tax

determined by respondent under section 6651(a)(1).                 We hold he

is.

       3.    Whether petitioner is liable for the addition to tax

determined by respondent under section 6651(a)(2).                 We hold he

is.

       4.    Whether petitioner is liable for the additions to tax

determined by respondent under section 6654(a).               We hold he is.

       5.    Whether we shall impose a penalty on petitioner under

section 6673 for advancing frivolous and/or groundless claims.

We shall impose a penalty of $10,000.

                               FINDINGS OF FACT

       Some facts have been stipulated.          The parties’ stipulation

of facts and the exhibits submitted therewith are incorporated
                                -3-

herein by this reference.   Petitioner resided in Phoenix,

Arizona, when his petition was filed.

     Petitioner has not filed a 1994, 1995, or 1996 Federal

income tax return.   On February 14, 2001, respondent prepared

substitutes for returns on the basis of information received from

third parties.   The information reported that the third parties

had paid to petitioner the following wages during the subject

years:

             Payor                        Year       Amount

     Rescue Industries, Inc.              1994      $15,287
                                          1995       18,855.85
                                          1996       23,514

     La Quinta Inns, Inc.                 1995          115

     Courier Management Services, Inc.    1995        5,501
                                          1996          187

Respondent determined petitioner’s tax liability as to those

payments by considering his filing status to be “Single”.

     Petitioner failed to cooperate with respondent in the audit

of his tax liability for the subject years, and petitioner has

failed to cooperate with respondent during this proceeding.    At

trial, petitioner did not answer any substantive questions as to

his tax liability.   Relying upon the Fifth Amendment, petitioner

claimed that he was refusing to answer those questions because

his answers might incriminate him.
                                 -4-

                               OPINION

A.   Respondent’s Deficiency Determinations

      1.   Burden of Proof

      Respondent’s deficiency determinations set forth in the

notices of deficiency are presumed correct, and petitioner bears

the burden of proving them wrong.      Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).     Section 7491 shifts to

respondent the burden of proof as to these deficiencies when the

taxpayer establishes that he or she met certain requirements.      We

conclude from the record that petitioner has not met those

requirements.

      2.   Validity of Determinations

      Petitioner alleged in his petition that he did not receive

the income reported to the Commissioner by the third parties and

that the Commissioner erred by not allowing petitioner to deduct

certain amounts provided for by law.1     We read the record to

support a contrary conclusion.    Given the fact that petitioner

has never filed Federal income tax returns for the subject years,

and that he refused to cooperate with respondent in the audit of

his Federal income tax liability for those years, we consider it

proper for respondent to have determined petitioner’s unreported


      1
       Petitioner also alleged in his petition that his filing
status for the subject years was “Married”. Given that the
record contains no evidence to prove that petitioner was married
during those years, we sustain respondent’s determination that
petitioner’s filing status was “Single”. Rule 142(a).
                                 -5-

income for the subject years from the information received from

the third parties.   E.g., Parker v. Commissioner, 117 F.3d 785

(5th Cir. 1997); see also Hardy v. Commissioner, 181 F.3d 1002,

1005 (9th Cir. 1999), affg. T.C. Memo. 1997-97.    We sustain

respondent’s determination as to petitioner’s unreported income

given the additional fact that petitioner did not present at

trial even a scintilla of evidence to prove error in that

determination.2

B.   Additions to Tax

     1.   Burden of Proof

     Section 7491(c) requires that respondent bear the burden of

production as to the additions to tax.    In order to meet this

burden, respondent must present evidence indicating that it is

appropriate to impose an addition to tax.    See Higbee v.

Commissioner, 116 T.C. 438, 446 (2001).

     2.   Validity of Determinations

           a.   Section 6651(a)(1)

     Section 6651(a)(1) imposes an addition to tax for failing to

file timely a required Federal income tax return, unless it is

shown that the failure was due to reasonable cause and not




     2
       As for his claim to certain deductions, petitioner has
neither identified nor proven that he is entitled to any such
deductions. See Rockwell v. Commissioner, 512 F.2d 882 (9th Cir.
1975), affg. T.C. Memo. 1972-133.
                                 -6-

willful neglect.   Petitioner was required to file Federal income

tax returns for each of the subject years.    Secs. 6012, 6072.3

     Respondent met his burden of production in that respondent

introduced (and the Court admitted) into evidence a Form 4340,

Certificate of Assessments, Payments and Other Specified Matters,

and the testimony of the revenue agent who audited petitioner,

both to the effect that respondent’s records do not indicate that

respondent has ever received a Federal income tax return from

petitioner for any of the subject years.    Petitioner, in turn,

has failed to meet his burden of proof.    Petitioner has never

asserted or presented any evidence indicating that he filed one

or more of the subject returns, nor has he established that any

of the returns was not filed timely for cause that is reasonable.

We hold that petitioner is liable for the additions to tax under

section 6651(a)(1).    United States v. Boyle, 469 U.S. 241, 245

(1985); Cluck v. Commissioner, 105 T.C. 324, 338-339 (1995).

          b.   Section 6651(a)(2)

     Section 6651(a)(2) generally imposes an addition to tax for

a failure to pay timely the amount of tax shown on a Federal

income tax return.    Although petitioner did not file his Federal

income tax returns for 1994, 1995, and 1996, the Commissioner

prepared substitutes for returns for those years.    A return


     3
       The minimum amount exception under sec. 6012(a)(1)(A)(i)
does not apply to petitioner for any subject taxable year, as
petitioner’s income exceeded the minimum amount.
                                 -7-

prepared by the Commissioner under section 6020(b) is treated as

a return filed by the taxpayer for returns due after July 30,

1996, for purposes of section 6651(a)(2).    Sec. 6651(g); Smith v.

Commissioner, T.C. Memo. 2000-290.     We conclude that petitioner

is liable for the addition to tax under section 6651(a)(2).    See

sec. 6654(a); Smith v. Commissioner, supra (citing United States

v. Boyle, supra at 245); cf. Heisey v. Commissioner, T.C. Memo.

2002-41 (no liability in absence of substitute of return), affd.

___ Fed. Appx. ___ (9th Cir., Mar. 20, 2003).

          c.   Section 6654(a)

     Section 6654 imposes an addition to tax on an underpayment

of estimated tax.   This addition to tax is mandatory unless the

taxpayer establishes that one of the exceptions listed in section

6654(e) applies.    Recklitis v. Commissioner, 91 T.C. 874, 913

(1988).

     The Form 4340 and the testimony of the revenue agent

establish that petitioner failed to pay the required amounts of

estimated tax for 1995 and 1996.   We conclude that respondent has

met his burden of production as to this issue.    Given that the

record does not establish that any of the referenced exceptions

apply, we conclude that petitioner has failed to meet his burden

of proof and sustain respondent’s determination as to this issue.

Motley v. Commissioner, T.C. Memo. 2001-257.
                                -8-

C.   Penalty Under Section 6673(a)

      Respondent moved the Court at the end of trial to impose a

penalty under section 6673(a)(1).     Respondent asserts that

petitioner’s position in this case is frivolous and groundless.

Respondent also asserts that petitioner instituted these

proceedings primarily for the purpose of delay.

      Section 6673(a)(1) authorizes the Court to require a

taxpayer to pay to the United States a penalty of up to $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 proceeding is frivolous or

groundless.   Here, petitioner did not offer any evidence at

trial, nor did he otherwise make any legitimate attempt to prove

respondent’s determinations wrong.     Petitioner was warned by

respondent before trial and was warned by the Court during trial

that his position (or lack thereof) was without merit and could

subject him to a penalty of up to $25,000 under section 6673(a).

Petitioner disregarded these warnings and has consumed wastefully

the time, resources, and effort of the Court.     We conclude from

the record that petitioner’s positions in this proceeding are

frivolous and without merit.   We also conclude from the record

that petitioner has instituted and maintained this proceeding

primarily for delay.   Pursuant to section 6673, we require

petitioner to pay to the United States a penalty of $10,000.
                                -9-

     We have considered all arguments and have found those

arguments not discussed herein to be irrelevant and/or without

merit.   To reflect the foregoing,



                                           An appropriate order and

                                      decision will be entered for

                                      respondent.
