                          T.C. Memo. 2006-42



                       UNITED STATES TAX COURT



                 ROY JAY STALLARD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17364-05.              Filed March 15, 2006.



     Roy Jay Stallard, pro se.

     Michelle L. Maniscalco, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion to dismiss for failure to state a claim upon which

relief can be granted and to impose a penalty under section 6673

(respondent’s motion).1


     1
      All section references are to the Internal Revenue Code in
                                                   (continued...)
                               - 2 -

                            Background

     On September 16, 2005, petitioner filed a petition with

respect to the notice of deficiency (notice) which respondent

issued to him for his taxable year 2002 and in which respondent

determined, inter alia, a deficiency of $52,174 in petitioner’s

Federal income tax (tax) for that year.2   The petition contains

statements, contentions, and arguments that the Court finds to be

frivolous and groundless.   For example, the petition states in

pertinent part:

          1. I request that the balance due in the amount
     of 1,371.00,[3] found and shown on line 16 of the Form
     4549A, attached to the subject notice of deficiency be
     redetermined and set to zero, or in the alternative
     that the notice of deficiency be remanded to the IRS
     for perfection.

     2.   I am entitled to the relief requested because, as
          stated by the Secretary of Treasury at 26 CFR
          601.102(f)(1): “Rule 1. An exaction by the
          United States Government, which is not based upon
          law statutory OR OTHERWISE, is a taking of prop-
          erty without due process of law, in violation of
          the Fifth Amendment to the U. S. Constitution.


     1
      (...continued)
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
     2
      In the notice, respondent also determined additions to
petitioner’s tax under sec. 6651(a)(2) and (f) for his taxable
year 2002. In respondent’s motion, respondent concedes those
additions to tax.
     3
      In the notice, respondent determined a deficiency of
$52,174 in petitioner’s tax for his taxable year 2002. The
notice further showed “Adjustments to Prepayment Credits” of
$50,803 and a “Balance Due” of $1,371 (excluding interest and
penalties).
                              - 3 -

          Accordingly, an Appeals representative in his or
          her conclusions of fact or application of the law
          * * * shall hew to the law and the recognized
          standards of legal construction. It shall be his
          or her duty to determine the correct amount of the
          tax, with strict impartiality as between the tax-
          payer and the Government, and without favoritism
          or discrimination as between taxpayers.” (empha-
          sis added).

         3. Unlike the penalties proposed at lines 7a and
    7b of the Form 4549A attached to the notice of defi-
    ciency, infra, the Form 4549A report does not give any
    notice of the law, statutory or otherwise, which was
    applied in concluding that I was, indeed, the person
    made liable for the payment of the purported debt.
    This omission raises the question of whether or not
    liability to pay might arises out of some non-statutory
    law. Whatever the case may be, the notice of defi-
    ciency does not give fair notice of it.

          4. Because, with respect to a tax imposed on the
     transfer of property, the person made liable for its
     payment may be the transferor, transferee or as in the
     case of the death tax, a third party, due process
     requires that Congress identify the person made liable
     for payment of each tax imposed, and so it usually
     does. The legal personality of each person made liable
     for the payment every other tax imposed by Congress is
     described clearly within the IRC, but such is not the
     case with regard to the purported tax debt here. There
     is neither an Act of Congress nor a Treasury Regulation
     which clearly and unequivocally identifies the person
     made liable for the payment of the purported tax debt.
     [Reproduced literally.]

     On November 2, 2005, respondent filed respondent’s motion.

On November 17, 2005, the Court issued an Order (Court’s November

17, 2005 Order) in which it ordered petitioner to file a written

response to respondent’s motion by December 9, 2005.   In that

Order, the Court also indicated that the petition contains

statements, contentions, and arguments that the Court finds to be
                                - 4 -

frivolous and groundless.    In the Court’s November 17, 2005

Order, the Court reminded petitioner about section 6673(a)(1) and

admonished him as follows:

     In the event that petitioner continues to advance
     frivolous and/or groundless statements, contentions,
     and arguments, the Court will be inclined to impose a
     penalty not in excess of $25,000 on petitioner under
     section 6673(a)(1), I.R.C.

     On December 6, 2005, the Court received from petitioner one

document (petitioner’s document) which contained (1) “PETI-

TIONER’S MEMORANDUM IN OPPOSITION TO RESPONDENT’S MOTION TO

DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE

GRANTED AND TO IMPOSE A PENALTY UNDER I.R.C. § 6673” and (2) an

“AMENDED PETITION”.   On December 7, 2005, the Court had that

document returned to petitioner unfiled because an amended

petition must be separate from any other document furnished to

the Court and must bear petitioner’s original signature.

     On January 6, 2006, petitioner filed an amended petition.

In total disregard of the Court’s November 17, 2005 Order,

petitioner included in the amended petition statements, conten-

tions, and arguments that the Court finds to be frivolous and

groundless.   For example, the amended petition states in perti-

nent part:

              ASSIGNMENTS OF ERROR, FACTUAL BASIS AND
                          RELIEF REQUESTED

                                a.
       The notice of deficiency is notice in name only and
    does not meet due process of law requirements for notice
                          - 5 -

     4. The notice of deficiency is ambiguous and
without legal effect. The error is an error of omis-
sion. Commissioner erred in drafting and issuing the
document captioned “notice of deficiency” in that he
omitted certain fundamental elements due process of law
requires for such notice to have substantive legal
effect.

                          FACTS

     a. On the notice of deficiency or the accompany-
ing documents there is no unequivocal statement of the
law, statutory or otherwise1, by which the purposed tax
debt was established.

     b. On the notice of deficiency or the companying
documents there is no unequivocal statement of the law,
statutory or otherwise that identifies the legal per-
sonality of the person made liable for payment of the
purported debt.

     c. On the notice of deficiency or the accompany-
ing documents there is no unequivocal statement of
fact, made under penalty of perjury, that brings the
impact of the law specified in 2 and 3 above, against
me.

     d. On the notice of deficiency or the accompany-
ing documents there is no unequivocal statement of
fact, made under penalty of perjury that brings the
impact of the statutes imposing the penalties against
me.

     5. I request that the court redetermine all of
the liabilities purported on the notice of deficiency
and the accompanying documents and set it them to zero
on account of the facial defects of the so-called
notice.

_______________________
1
 26 CFR 601.106(f)(1)
                              - 6 -

                                b.
             Liability for payment of debt, line 16.

           6. The Commissioner erred in determining that I
     am the person made liable for the payment of
     $1,371.00[4] * * *. The error is an error of commis-
     sion.

                              FACTS

          a. Either I am or I am not the person made liable
     by a particular statutory provision that describes the
     person made liable or for payment, or in the alterna-
     tive, I am or I am not made liable for its payment by
     non-statutory law. We are left to guess at what that
     law might be, but whatever the law might be, I deny
     liability for want of notice.

          b. The Commissioner made a determination based
     upon presumption or inference rather than law and fact.
     Because the notice of deficiency does not specify the
     law or fact upon which determination of liability shown
     on line 16 is based, I am without knowledge as to the
     basis for the purported debt due to the Commissioner’s
     non-disclosure of it, and therefor I am unable to frame
     a more specific assignment of error.

          7. I request that the amount shown on line 16 of
     the form 4595A be set to zero for want of any factual
     or legal basis or because the amount shown was deter-
     mined by inference, presumption, wishful thinking or
     some other inappropriate methodology, but not by the
     application of specific law to specific fact. Revenue
     Due process is not some carnival guessing game where
     the law is hidden under a shell and the player may be
     slapped with an outrageous penalty for failing to
     detect the palming of it by a debt trickster.

     On January 5, 2006, the Court issued an Order in which it

(1) noted that it had returned unfiled to petitioner on December

7, 2005, petitioner’s document that the Court received from

petitioner on December 6, 2005, and (2) ordered petitioner to

     4
      See supra note 3.
                               - 7 -

file a written response to respondent’s motion by January 31,

2006.

     On January 9, 2006, the Court received from petitioner a

“Certificate of Service” (petitioner’s certificate of service),

but no document was submitted to the Court with that certificate.

On January 13, 2006, the Court had petitioner’s certificate of

service returned to petitioner unfiled with a reminder to peti-

tioner that a written response to respondent’s motion must be

received by the Court by January 31, 2006.   The Court did not

receive from petitioner any such written response.

     On February 2, 2006, respondent filed a supplement to

respondent’s motion (respondent’s supplement to respondent’s

motion).   Respondent attached as an exhibit to that supplement a

document entitled “PETITIONER’S MEMORANDUM IN OPPOSITION TO

RESPONDENT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED AND TO IMPOSE A PENALTY UNDER I.R.C.

§ 6673” (petitioner’s memorandum in opposition) that petitioner

served on respondent on December 6, 2005.    In total disregard of

the Court’s November 17, 2005 Order, petitioner included in

petitioner’s memorandum in opposition that petitioner served on

respondent on December 6, 2005, statements, contentions, and

arguments that the Court finds to be frivolous and groundless.

     On February 22, 2006, the Court issued an Order in which it

ordered the Clerk of the Court to file as of February 2, 2006, as
                              - 8 -

petitioner’s response to respondent’s motion a copy of peti-

tioner’s memorandum in opposition that respondent attached as an

exhibit to respondent’s supplement to respondent’s motion.

                           Discussion

     Rule 34(b) provides in pertinent part that a petition with

respect to a notice of deficiency is to contain:

           (4) Clear and concise assignments of each and
     every error which the petitioner alleges to have been
     committed by the Commissioner in the determination of
     the deficiency * * *. * * * Any issue not raised in the
     assignments of error shall be deemed to be conceded.
     * * *
           (5) Clear and concise lettered statements of the
     facts on which the petitioner bases the assignments of
     error * * *.

     The petition that petitioner filed on September 16, 2005,

and the amended petition that petitioner filed on January 6,

2006, do not contain (1) a clear and concise statement of the

errors allegedly committed by respondent in determining the

deficiency with respect to petitioner’s taxable year 2002 and

(2) a clear and concise statement of the facts that form the

basis of petitioner’s assignments of alleged error.   We conclude

that both the petition and the amended petition that petitioner

filed do not comply with the Tax Court Rules of Practice and

Procedure as to the form and content of a petition.

     Moreover, we have found that the petition and the amended

petition that petitioner filed contain statements, contentions,

and arguments that are frivolous and groundless.   “A petition
                               - 9 -

that makes only frivolous and groundless arguments makes no

justiciable claim”.   Nis Family Trust v. Commissioner, 115 T.C.

523, 539 (2000); see also Funk v. Commissioner, 123 T.C. 213,

216-217 (2004) (a petition and an amended petition did not state

a claim upon which relief may be granted where they lacked a

clear statement of error and contained “nothing more than frivo-

lous rhetoric and legalistic gibberish”).

     We find that petitioner’s claims in the petition and the

amended petition state no justiciable basis upon which relief may

be granted.

     In respondent’s motion, respondent also asks the Court to

impose a penalty on petitioner under section 6673.   Section

6673(a)(1) states in pertinent part:

          Whenever it appears to the Tax Court that--

               (A) proceedings before it have been insti-
          tuted or maintained by the taxpayer primarily for
          delay, [or]

               (B) the taxpayer’s position in such proceed-
          ing is frivolous or groundless, * * *

     the Tax Court, in its decision, may require the tax-
     payer to pay to the United States a penalty not in
     excess of $25,000.

     In the Court’s November 17, 2005 Order, the Court, inter

alia, indicated that the petition contains statements, conten-

tions, and arguments that the Court finds to be frivolous and

groundless.   In that Order, the Court reminded petitioner about

section 6673(a)(1) and admonished him that, in the event he
                                  - 10 -

continued to advance frivolous and/or groundless statements,

contentions, and arguments, the Court would be inclined to impose

a penalty not in excess of $25,000 on him under section

6673(a)(1).       In total disregard of the admonitions in the Court’s

November 17, 2005 Order, petitioner included in the amended

petition and in petitioner’s memorandum in opposition, which he

served on respondent on December 6, 2005, and which the Court had

filed as petitioner’s response to respondent’s motion,5 state-

ments, contentions, and arguments that the Court finds to be

frivolous and groundless.

        Petitioner is no stranger to this Court.    He previously

raised frivolous challenges to determinations that the Commis-

sioner of Internal Revenue made with respect to certain of his

other taxable years.       Stallard v. Commissioner, T.C. Memo. 1992-

593.6       In Stallard, we imposed a penalty of $8,000 on petitioner

under section 6673(a)(1) because he advanced frivolous arguments

in that case.       Id.

        We find that petitioner remains undeterred in advancing

frivolous and groundless statements, contentions, and arguments.

We further find that petitioner has instituted this proceeding


        5
      The Court had petitioner’s memorandum in opposition filed
as petitioner’s response to respondent’s motion as of Feb. 2,
2006.
        6
      See Stallard v. Commissioner, 1993 U.S. App. LEXIS 21011
(D.C. Cir., June 29, 1993) (granting motion to dismiss appeal for
improper venue).
                              - 11 -

primarily for delay.   Under the circumstances presented, we shall

impose a penalty of $25,000 on petitioner under section

6673(a)(1).

     To reflect the foregoing,


                                      An appropriate order and

                                 decision will be entered for

                                 respondent.
