                        T.C. Memo. 2001-91



                      UNITED STATES TAX COURT



            RONALD AND DORTHEA JOLING, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1895-00.                     Filed April 13, 2001.



     Ronald and Dorthea Joling, pro sese.

     Wesley F. McNamara, for respondent.



                        MEMORANDUM OPINION

     GERBER, Judge:   This case is before us on petitioners’

motion for summary judgment.   Respondent determined deficiencies

in and additions to petitioners’ Federal income tax for the 1994,

1995, and 1996 taxable years as follows:
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                         Petitioner Ronald Joling

                                         Additions to Tax
Year       Deficiency            Sec. 6651(a)(1)1       Sec. 6654
1994        $321,469               $80,367.25         $16,681.58
1995         305,884                76,471.00          16,585.83
1996         202,367                45,532.58          10,771.06


                         Petitioner Dorthea Joling

                                         Additions to Tax
Year        Deficiency           Sec. 6651(a)(1)      Sec. 6654
1994         $61,332               $15,333.00         $3,182.64
1995          81,511                20,377.75          4,419.71
1996          64,530                14,519.25          3,434.63
       1
       Respondent also determined that each petitioner is liable,
for each taxable year, for an addition to tax under sec.
6651(a)(2) in an amount to be computed.

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the periods under

consideration.

       Petitioners did not file returns, contending that their

sources of income were not taxable.        After respondent determined

tax deficiencies, petitioners brought forward documentation in an

attempt to show that they are entitled to deductions, if it is

decided that their income is from a source that is taxable.

Petitioners have moved for partial summary judgment on the legal

question of whether income from several sources, including their

trucking business, motel business, real estate sale, and bank
                                - 3 -

interest is the type of income that is taxable under the Internal

Revenue Code.1

Background

     Petitioners resided at Coquille, Oregon, at the time their

petition was filed in this case.    Petitioners filed Forms 1040,

U.S. Individual Income Tax Return, for years prior to 1992.     For

1992 and subsequent years, including the years in issue,

petitioners filed Forms 1040NR,    U.S. Nonresident Alien Income

Tax Return, generally reflecting that they were not subject to

income tax.    For the years 1994, 1995, and 1996, petitioner

Ronald Joling hauled goods by truck in return for compensation.

During the years 1994, 1995, and 1996, petitioners owned the

Myrtle Lane Motel, from which they received income from rental

proceeds. During the years 1994, 1995, and 1996, petitioners

received income from payments received for the sale of real

property.    For 1996, each petitioner received income from a



     1
       In their argument, petitioners reference sec. 1.6662-
4(d)(3)(iii), Income Tax Regs., concerning the definition of
“substantial authority” for purposes of the accuracy-related
penalty of sec. 6662. No accuracy-related penalty, however, is
in issue here. Respondent determined income tax deficiencies and
additions for delinquency (late-filing) and failure to pay
estimated tax. In that regard, petitioners have admitted that
they did not report income and/or file Forms 1040, U.S.
Individual Income Tax Return, for the years in issue.
Accordingly, we assume that petitioners’ reference to substantial
authority is some form of guideline or standard by which they
personally measure their acceptance of their legal conclusion
that the income tax is, in reality, an excise tax, a subject that
is discussed infra.
                                - 4 -

distribution due to the liquidation of individual retirement

accounts and/or pension plan.   During the years 1994, 1995, and

1996, petitioners received interest income from bank account(s).

Discussion

     Petitioners’ legal premise is that the income tax is

actually an excise tax and that they did not engage in any

“excise taxable activities” during the years in issue.2

Petitioners have gone to great lengths to support their premise

by citing cases, statutes, and related legal materials.     After

thorough review, we hold that petitioners’ legal premise is in

error and that petitioners have misconstrued the cited legal

materials.   We briefly review petitioners’ arguments.

     Petitioners present their legal argument in the classic

syllogistic form; i.e., (1) “the income tax is * * * an indirect

tax, in the nature of an excise [tax]”; (2) petitioners engaged

in no activity that is subject to excise tax; (3) therefore,

petitioners are not subject to tax.     Petitioners’ initial

premise, however, is fallacious in treating the income tax as

synonymous with, or the same as, an excise tax.     Petitioners’

reasoning is specious and circuitous in other respects.

Petitioners’ initial premise derives from early Supreme Court

cases where the constitutionality of an income tax was being



     2
       Petitioners specifically concede that “the federal income
tax laws are valid and constitutional.”
                               - 5 -

tested.   The early cases considered the 16th Amendment, which

authorized Congress to impose a tax on income without

apportionment among the States.   The Supreme Court referred to

the income tax as an indirect tax in “the class of excises,

duties, and imposts”.   Brushaber v. Union Pac. R.R., 240 U.S. 1,

15 (1916).   For example, petitioners cite the following cases:

Cook v. Tait, 286 F. 409, 412 (D. Md. 1923), affd. 265 U.S. 47

(1924); Brushaber v. Union Pac. R.R., supra; Stanton v. Baltic

Mining Co., 240 U.S. 103 (1916); White Packing Co. v. Robertson,

89 F.2d 775, 779 (4th Cir. 1937).

     From those cases, petitioners postulate that the “income

tax” is an “excise tax”, and that petitioners can show that their

activities (receipts) are not subject to the imposition of the

U.S. excise tax.   Petitioners have presented several other

unfounded arguments (legal and procedural) and peppered the Court

with a large volume of material in an attempt to be persuasive.

In sum and substance, petitioners have persuaded this Court only

that they are highly motivated in their attempt to avoid being

subjected to a Federal tax on their income.

     Wherefore, petitioners’ motion for summary judgment will be

denied.

                                       An appropriate order

                               will be issued.
