                        T.C. Memo. 2006-123




                      UNITED STATES TAX COURT



                 JOSEPH V. METALLIC, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13057-05.               Filed June 13, 2006.



     Joseph V. Metallic, pro se.

     Mark A. Ericson, for respondent.



                        MEMORANDUM OPINION


     COHEN, Judge:   This case is before the Court on respondent’s

Motion for Summary Judgment pursuant to Rule 121.    Respondent

determined deficiencies of $15,476, $7,639, and $17,408.10 in

petitioner’s Federal income taxes for 2001, 2002, and 2003,

respectively.   Respondent also determined additions to tax as

follows:
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Year        Sec. 6651(a)(1)     Sec. 6651(a)(2)     Sec. 6654

2001          $3,482.10            $2,630.92         $612.43
2002           1,512.23               739.31          249.55
2003           3,282.55               729.46          418.27

       The issues to be decided are whether petitioner had taxable

income in the years in issue and whether petitioner is liable for

the additions to tax for those years.

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

                              Background

       Petitioner resided in Nashua, New Hampshire, at the time

that he filed his petition.

       In notices of deficiency sent to petitioner, the Internal

Revenue Service (IRS) determined from third-party payors that

petitioner had income in the amounts of $75,747, $49,512, and

$82,150 in 2001, 2002, and 2003, respectively, and that he failed

to file Federal income tax returns for each of those years.     The

IRS determined tax liabilities and additions to tax under section

6651(a)(1) for late filing, section 6651(a)(2) for failure to pay

tax, and section 6654(a) for failure to make estimated tax

payments for each year.
                                  - 3 -

                                Discussion

       Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.       Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).       Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “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).   Petitioner has not

identified any facts or evidence that would be presented at trial

to controvert the undisputed facts already in the record.      See

Rule 121(d) (providing, in pertinent part, that a response “must

set forth specific facts showing that there is a genuine issue

for trial.”).    Petitioner’s request to deny respondent’s motion

for summary judgment only sets forth additional arguments as to

why his income is not taxable.      It does not allege any factual

errors with regard to the deficiency determinations or additions

to tax.    See Rule 34(b)(4).    We conclude that the material facts

are not disputed and that judgment may be rendered as a matter of

law.

       Section 1 imposes a tax on all taxable income.    Section

61(a)(1) includes in gross income “all income from whatever

source derived,” including compensation for services.      Respondent
                               - 4 -

determined that petitioner’s income was taxable income.

Petitioner contends that the IRS does not have the “jurisdiction

to levy Taxes on Micmacs.”   Citing the “Watertown Treaty of

Alliance” (Watertown Treaty), petitioner argues that the treaty

“signed between the MicMac Nation and the United States

Government was entered into by two Sovereign Nations” and that

nothing in the treaty states that they have to pay taxes.

     Native Americans are subject to the same Federal income tax

laws as are other U.S. citizens, unless there is an exemption

explicitly created by treaty or statute.     Squire v. Capoeman, 351

U.S. 1, 6 (1956); Estate of Poletti v. Commissioner, 99 T.C. 554,

557-558 (1992), affd. 34 F.3d 742 (9th Cir. 1994); see Allen v.

Commissioner, T.C. Memo. 2006-11; see also Rev. Rul. 2006-20,

2006-15 I.R.B. 746.   Any exemption must be based on the clear and

unambiguous language of a statute or treaty.     Squire v. Capoeman,

supra; see Allen v. Commissioner, supra.     Petitioner has not

shown that the Watertown Treaty specifically exempts any of his

compensation.   See George v. Commissioner, T.C. Memo. 2006-121.

     Respondent determined additions to tax under section

6651(a)(1) for the years in issue.     Section 6651(a)(1) provides

for an addition to tax of 5 percent of the tax required to be

shown on the return for each month or fraction thereof for which

there is a failure to file, not to exceed 25 percent.    The

addition to tax for failure to file is not imposed if it is shown
                               - 5 -

that the failure to file did not result from willful neglect and

was due to reasonable cause.   See United States v. Boyle, 469

U.S. 241, 245 (1985).   To prove reasonable cause, a taxpayer must

show that he or she exercised ordinary business care and prudence

but nevertheless could not file the return when it was due.    See

Crocker v. Commissioner, 92 T.C. 899, 913 (1989); sec. 301.6651-

1(c)(1), Proced. & Admin. Regs.   Because petitioner failed to

present a reasonable explanation for his failure to file, nor any

genuine issue for trial in that regard, summary judgment is also

appropriate to sustain respondent's determination with respect to

the additions to tax under section 6651(a)(1).

     Additionally, respondent determined additions to tax under

section 6651(a)(2) for failure to pay tax.    Section 6651(a)(2)

provides for an addition to tax of 0.5 percent per month up to

25 percent for failure to pay the amount shown on a return.    This

addition to tax, however, applies only in the case where a return

has been filed.   See Spurlock v. Commissioner, T.C. Memo. 2003-

124; see also Burr v. Commissioner, T.C. Memo. 2002-69; Heisey v.

Commissioner, T.C. Memo. 2002-41, affd. 59 Fed. Appx. 233 (9th

Cir. 2003).   Under section 6651(g)(2), a return the Secretary

prepared under section 6020(b) is treated as “the return filed by

the taxpayer for purposes of determining the amount of the

addition” under section 6651(a)(2).    For these purposes, a

section 6020(b) return, in the context of section 6651(a)(2) and
                                 - 6 -

(g)(2), “must be subscribed, it must contain sufficient

information from which to compute the taxpayer’s tax liability,

and the return form and any attachments must purport to be a

‘return’.”   Spurlock v. Commissioner, supra; see also Cabirac v.

Commissioner, 120 T.C. 163, 170-171 (2003).     Respondent has not

shown that the requirements under sections 6651(a)(2), (g)(2),

and 6020(b) have been satisfied.     Therefore, as a matter of law,

the motion for summary judgment will not be granted as to this

issue and the addition to tax under section 6651(a)(2) cannot be

sustained.

     Respondent also determined additions to tax under section

6654(a) for failure to pay estimated taxes for the years in

issue.   Petitioner does not assert that he made any estimated tax

payments for the years in issue.    In the absence of special

exceptions not applicable here, petitioner is liable for this

addition to tax for the years in issue, and summary judgment is

appropriate to sustain respondent’s determination with respect to

the additions to tax under section 6654(a).     Grosshandler v.

Commissioner, 75 T.C. 1, 20-21 (1980).

     To reflect the foregoing,


                                           An appropriate order and

                                      decision will be entered.
