                        T.C. Memo. 2004-214



                      UNITED STATES TAX COURT



                 MARK R. HALCOTT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6010-03.            Filed September 22, 2004.


     Mark R. Halcott, pro se.

     Richard D. D’Estrada, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:   Respondent determined an $8,719 deficiency

in petitioner’s Federal income tax for 2000 (year in issue), a

$1,227 section 6651(a)(1) addition to tax, and a $240 section

6654(a) addition to tax.1   After concessions, the remaining issue


     1
        Unless otherwise noted, all section references are to the
Internal Revenue Code in effect for the year in issue, and all
                                                   (continued...)
                               - 2 -

for decision is whether petitioner is liable for the addition to

tax under section 6651(a)(1) for the year in issue.2

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time the petition

was filed, petitioner resided in Colorado.

     Petitioner sent respondent a Form 1040, U.S. Individual

Income Tax Return, for 2000 with zeros filled in for all items,

except for Federal tax withheld, total payments, amount overpaid,

and amount to be refunded.   Petitioner attached two W-2

statements, Wage and Tax Statement, reporting wages earned of

$50,539, and a 2-page form letter containing tax-protester

arguments.   Petitioner signed and dated the Form 1040, and wrote

“N.O.Y.B.” for his daytime telephone number.   Respondent did not

treat petitioner’s Form 1040 as a processable tax return.

     On January 22, 2003, respondent sent petitioner a notice of

deficiency, determining that petitioner owed a deficiency of

$8,719 on the basis of the attached W-2 statements and additions




     1
      (...continued)
Rule references are to the Tax Court Rules of Practice and
Procedure. Amounts are rounded to the nearest dollar.
     2
        By order dated Aug. 5, 2003, the Court deemed conceded by
petitioner the deficiency pursuant to Rule 34. Respondent
conceded the sec. 6654(a) addition to tax.
                               - 3 -

to tax of $1,227 and $240 under sections 6651(a)(1) and 6654(a),

respectively.

     On April 21, 2003, petitioner filed with the Court a

petition containing 12 pages of tax-protester arguments.    On June

6, 2003, respondent filed a motion to dismiss for failure to

state a claim upon which relief can be granted.   The Court

ordered petitioner to file an amended petition in which

petitioner sets forth “with specificity each error petitioner

alleges was made by the respondent in the determination of the

deficiency and additions to tax, and separate statements of every

fact upon which petitioner bases the assignment of each error.”

The Court also ordered the case calendared for a hearing on

respondent’s motion at the July 30, 2003, Motions Session of the

Court.

     On June 27, 2003, petitioner filed with the Court an amended

petition which contained, for the most part, tax-protester

arguments.   After the hearing, at which petitioner did not

appear, the Court ordered:   (1) Respondent’s motion be denied;

(2) all statements and allegations set forth in the amended

petition be stricken, with the exception of two paragraphs; and

(3) any issue that was not raised by the excepted two paragraphs

be deemed conceded pursuant to Rule 34.
                              - 4 -

The paragraphs that the Court did not strike in the amended

petition state:

          13. Aggrieved Petitioner further complains that
     United States of America by and through its Congress
     and IRS have such a complicated code that is
     incomprehensible and that at no time did IRS inform
     Petitioner how to file a claim showing no liability for
     a tax, but Petitioner has heard of others who have gone
     to prison for not filing a return, under threat, duress
     to be on the safe side, Petitioner filed returns
     showing no liability for tax year 2000 and 2001. If
     such is an error, IRS had a ministerial duty to
     communicate and inform Petitioner on how to correct the
     IRS records to avoid error.

          14. Aggrieved Petitioner further complains that
     United States of America and IRS knows or should know,
     even if Petitioner could be shown within the
     jurisdiction of Congress, that Internal Revenue Manual
     4.19.1.6.2, states under “Identification of Frivolous
     Documents”.

     “NOTE: Returns having zeros or no tax entries and no
     evidence of frivolous arguments do not meet the
     criteria for FRP (Frivolous Return Program)
     processing”, yet IRS claims unlawfully, the claim is
     frivolous.

                             OPINION

     After concessions, the remaining issue for decision is

whether petitioner is liable for an addition to tax under section

6651(a)(1) for the year in issue because he filed a “zero tax

return.”

     Section 7491(c) requires the Commissioner to carry the

burden of production in any court proceeding with respect to the
                                - 5 -

liability of any individual for any addition to tax.3   Higbee v.

Commissioner, 116 T.C. 438, 446-447 (2001).   To meet his burden

of production, respondent must come forward with sufficient

evidence indicating that it is appropriate to impose the addition

to tax.   Id.   Once respondent meets his burden of production,

petitioner must come forward with evidence sufficient to persuade

the Court that respondent’s determination is incorrect.    Id.

     Respondent argues that petitioner is liable for an addition

to tax under section 6651(a)(1).   Section 6651(a)(1) imposes an

addition to tax for failure to file a return on the date

prescribed (determined with regard to any extension of time for

filing), unless the taxpayer can establish that such failure is

because of reasonable cause and not because of willful neglect.

The issue is whether petitioner filed a valid return for section

6651(a)(1) purposes.

     Respondent introduced at trial and the Court received into

evidence petitioner’s Form 4340, Certificate of Assessments,

Payments, and Other Specified Matters, which indicated that

respondent did not receive a processable Federal income tax



     3
        In Funk v. Commissioner, 123 T.C. 213, 218 (2004), we
held that when a taxpayer fails to state a claim in respect of
penalties, additions to tax, and/or additional amounts, the
Commissioner incurs no obligation to produce evidence in support
of such determinations pursuant to sec. 7491. In the present
case, the paragraphs that the Court did not strike in the amended
petition relate to petitioner’s argument that he is not liable
for an addition to tax under sec. 6651(a)(1).
                                 - 6 -

return from petitioner for the year in issue.    We find that

respondent met his burden of production under section 7491(c),

and, as a result, petitioner must come forward with evidence

sufficient to persuade the Court that respondent’s determination

that petitioner is liable for the section 6651(a)(1) addition to

tax is incorrect.     See Rodriguez v. Commissioner, T.C. Memo.

2003-105. In order to determine whether a tax return is valid, we

follow the test enunciated in Beard v. Commissioner, 82 T.C. 766,

777 (1984), affd. 793 F.2d 139 (6th Cir. 1986) (Beard test):

     First, there must be sufficient data to calculate tax
     liability; second, the document must purport to be a
     return; third, there must be an honest and reasonable
     attempt to satisfy the requirements of the tax law; and
     fourth, the taxpayer must execute the return under
     penalties of perjury.

We have applied the Beard test to determine whether a return is

valid for purposes of section 6651(a)(1).    See, e.g., Cabirac v.

Commissioner, 120 T.C. 163, 169 n.10 (2003); Beard v.

Commissioner, supra at 780; Unroe v. Commissioner, T.C. Memo.

1985-149; Counts v. Commissioner, T.C. Memo. 1984-561, affd. 774

F.2d 426 (11th Cir. 1985).

     The critical requirement that there must be “an honest and

reasonable attempt” to satisfy the tax law is clearly not met.

Petitioner’s attachment of two pages of tax-protester arguments

to the Form 1040 contained arguments that have been consistently

rejected by courts.    Further, petitioner’s denial of tax

liability and refusal to self-assess on the Form 1040 does not
                                - 7 -

evidence a reasonable attempt to file a tax return under the tax

laws.    See Williams v. Commissioner, 114 T.C. 136, 143 (2000).

     Additionally, the Form 1040 filed by petitioner did not

contain sufficient information to constitute a valid return.     We

have held that the attachment of a Form W-2 does not substitute

for the disclosure on the form itself of income, deductions,

credits, and tax liability.    Reiff v. Commissioner, 77 T.C. 1169,

1178 (1981); see Beard v. Commissioner, supra at 779.    Ignoring

the Form W-2, the Form 1040 reports zero income, deductions,

credits, and tax liability.   We have consistently held that a

zero tax return is not a valid tax return because it does not

contain sufficient information for respondent to calculate and

assess a tax liability.   See Cabirac v. Commissioner, supra at

169; Cline v. Commissioner, T.C. Memo. 1982-44; see also United

States v. Rickman, 638 F.2d 182, 184 (10th Cir. 1980); United

States v. Porth, 426 F.2d 519, 523 (10th Cir. 1970).4

     We conclude that petitioner’s tax return did not constitute

a valid return for section 6651(a)(1) purposes.   Further,

petitioner did not provide evidence that his failure to file a

valid tax return was because of reasonable cause and not because



     4
        We note that the Court of Appeals for the Ninth Circuit
has held that a zero tax return is a valid tax return. United
States v. Long, 618 F.2d 74, 75-76 (9th Cir. 1980). The Court of
Appeals for the Tenth Circuit, the court to which this case is
appealable, has expressly disagreed with the decision in Long.
United States v. Rickman, 638 F.2d 182, 184 (10th Cir. 1980).
                                 - 8 -

of willful neglect.   As a result, we hold that petitioner is

liable for the addition to tax under section 6651(a)(1) for

failure to file a timely tax return for the year in issue.

     In reaching our holding herein, we have considered all

arguments made, and, to the extent not mentioned above, we

conclude that they are moot, irrelevant, or without merit.

     To reflect the foregoing,

                                              Decision will be

                                         entered for respondent.
