                        T.C. Memo. 2006-52



                      UNITED STATES TAX COURT



                  DAVID H. SAXON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17981-05.                 Filed March 23, 2006.



     David H. Saxon, pro se.

     James L. May, Jr., for respondent.



                        MEMORANDUM OPINION


     JACOBS, Judge:   Respondent determined a $130,095.30

deficiency in petitioner’s 2003 Federal income tax, a $29,271.44

addition to tax under section 6651(a)(1), a $7,155.24 addition to

tax under section 6651(a)(2), and a $3,356.85 addition to tax
                                 - 2 -

under section 6654(a).1    This case is before the Court on

respondent’s motion to dismiss for failure to state a claim upon

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

6673 (motion to dismiss).

                              Background

     When the petition in this case was filed, petitioner resided

in Maryville, Tennessee.

     Petitioner failed to file an income tax return for 2003.     In

addition, he failed to pay any tax for 2003, including estimated

income tax.

     On September 26, 2005, petitioner filed a petition with the

Court seeking judicial review of respondent’s aforementioned

determination of the deficiency and additions to tax for 2003.

In the petition, petitioner alleges he was required to file a

return only if (1) the Secretary through a designated delegate

obtained approval from the Office of Management and Budget (OMB)

for a valid control number appearing on the form petitioner is

required to file and authorizing the collection of income tax

information and (2) petitioner’s income exceeds the exempt amount

under section 151(d).     No meaningful facts supporting




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 3 -

petitioner’s claims of error with respect to respondent’s

determinations for 2003 are contained in the petition.

     On October 27, 2005, respondent filed the motion to dismiss,

asserting that in the petition petitioner makes no claims of

factual error and asserts only frivolous law and legal

conclusions.   Respondent posits that petitioner has not alleged

any justiciable error with respect to the determinations set

forth in the notice of deficiency or any facts in support of any

error.   On December 27, 2005, petitioner filed his notice of

objection to respondent’s motion to dismiss.2

                              Discussion

     Rule 34(b)(4) provides that a petition filed in this Court

shall contain “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 or

liability.”    Further, Rule 34(b)(5) provides that the petition


     2
      Respondent filed a motion to dismiss on similar grounds in
petitioner’s lien and levy case at docket No. 16369-05L
(collection case). A hearing on respondent’s motion in the
collection case was held on Dec. 21, 2005. Petitioner did not
appear at that hearing. On Dec. 23, 2005, the Court entered an
order of dismissal and decision in the collection case. On Dec.
27, 2005, the Court received petitioner’s statement of position
with respect to the collection case. See Rule 50(c).

     Although no hearing had been set for arguments on
respondent’s motion to dismiss in this case, on Dec. 27, 2005,
petitioner filed a premature written statement of his position
with respect to respondent’s motion to dismiss. The Court
concludes that a hearing is unnecessary for the proper
disposition of respondent’s motion to dismiss.
                                - 4 -

shall contain “Clear and concise lettered statements of the facts

on which the petitioner bases the assignments of error, except

with respect to those assignments of error as to which the burden

of proof is on the Commissioner.”   Any issue not raised in the

pleadings is deemed conceded.   Rule 34(b)(4); Jarvis v.

Commissioner, 78 T.C. 646 (1982); Gordon v. Commissioner, 73 T.C.

736, 739 (1980).   The Court may dismiss a case at any time and

enter a decision against a taxpayer for failure to comply with

the Court’s Rules.   Rule 123; see Goza v. Commissioner, 114 T.C.

176 (2000); Klein v. Commissioner, 45 T.C. 308 (1965); Stephens

v. Commissioner, T.C. Memo. 2005-183; White v. Commissioner, T.C.

Memo. 1981-609.

     The petition includes allegations that respondent failed to

demonstrate that petitioner is liable for Federal income taxes.

Petitioner claims that he is not liable for Federal income taxes

because the OMB control number, 1545-0074, on the Form 1040, U.S.

Individual Income Tax Return, for 2003 is invalid and does not

comply with the requirements of the Paperwork Reduction Act of

1980 (PRA), 44 U.S.C. secs. 3501-3520 (2000).   None of

petitioner’s allegations states a claim on which relief may be

granted.

     Claims that violation of the PRA excuses a taxpayer from

filing returns and/or paying taxes have been considered and

universally rejected as meritless by this and other courts.   See,
                                 - 5 -

e.g., James v. United States, 970 F.2d 750, 753 n.6 (10th Cir.

1992); United States v. Neff, 954 F.2d 698, 699 (11th Cir. 1992);

Freas v. Commissioner, T.C. Memo. 1993-552; Andreas v.

Commissioner, T.C. Memo. 1993-551.

     Petitioner argues that he is not obligated to pay Federal

income tax because (1) the Internal Revenue Code does not assign

a value to the “exempt amount”, (2) the “exempt amount” appears

in IRS publications and instructions “ex post facto”, and (3) he

is not required “to comply with a law ‘ex post facto’”.

Petitioner’s argument is incomprehensible.    If petitioner means

to assert that the taxation of income in excess of the exempt

amount is an ex post facto law in violation of Article I of the

Constitution, that argument has no merit.    The constitutional

prohibition against ex post facto laws applies only to penal

legislation that imposes or increases criminal punishment for

conduct predating its enactment.     Harisiades v. Shaughnessy, 342

U.S. 580, 594 (1952).    The Ex Post Facto Clause is not applicable

in a civil context.     Johannessen v. United States, 225 U.S. 227,

242 (1912).   The Federal income tax imposed under the Internal

Revenue Code is not penal legislation and does not impose or

increase criminal punishment.    Accordingly, imposition of Federal

income tax on income in excess of the exempt amount does not

violate the Ex Post Facto Clause of the U.S. Constitution.    See

Karpa v. Commissioner, 909 F.2d 784 (4th Cir. 1990) (retroactive
                               - 6 -

increase in penalty imposed for substantial understatement did

not violate the Ex Post Facto Clause of the U.S. Constitution),

affg. T.C. Memo. 1989-535; DiLeo v. Commissioner, 96 T.C. 858,

878 (1991) (amendment of section 6661 does not violate the Ex

Post Facto Clause of the U.S. Constitution), affd. 959 F.2d 16

(2d Cir. 1992); Lyle v. Commissioner, T.C. Memo. 1999-184

(section 86 does not violate the Ex Post Facto Clause of the U.S.

Constitution), affd. without published opinion 218 F.3d 744(5th

Cir. 2002).

     Lastly, petitioner maintains that unsubstantiated statements

on Forms 1099 that he received income from third parties are not

sufficient to support respondent’s determinations in the notice

of deficiency because the statements were not made under penalty

of perjury.3   However, when a petition does not contain a

justiciable assignment of error with respect to the

Commissioner’s determination, the Commissioner need not provide

the foundation for his determination.   See Roat v. Commissioner,

847 F.2d 1379, 1383 (9th Cir. 1988) (sustaining a Tax Court order

dismissing taxpayers’ case for failure to prosecute).   Petitioner

has failed to assign error in the manner required by Rule

34(b)(4) and (5) with respect to any item included in the notice

of deficiency for 2003.   Consequently, respondent was entitled to


     3
      Apparently, respondent determined petitioner’s income for
2003 on the basis of third-party information.
                               - 7 -

rely on the third-party information to determine petitioner’s

income for 2003.   See sec. 6201(d); Parker v. Commissioner, 117

F.3d 785 (5th Cir. 1997) (when the taxpayer files no return or

other sworn statement denying receipt of unreported income, the

Commissioner has no duty to investigate a third-party payment

report); Silver v. Commissioner, T.C. Memo. 2005-281; Martinez v.

Commissioner, T.C. Memo. 2005-213; White v. Commissioner, T.C.

Memo. 1997-459.

     In sum, we find that petitioner failed to state in the

petition any justiciable basis on which this Court may grant him

relief.   Because petitioner has failed to state a claim for which

relief can be granted, we shall grant respondent’s motion to

dismiss as to the deficiency in income tax for 2003 in the amount

set forth in the notice of deficiency.   See Funk v. Commissioner,

123 T.C. 213, 216-217 (2004) (finding that a petition and an

amended petition failed to state a claim upon which relief could

be granted when they lacked a clear statement of error and

contained “nothing more than frivolous rhetoric and legalistic

gibberish”).

     Petitioner’s failure to file and pay tax (including

estimated income tax) was not due to reasonable cause, but rather

due to willful neglect.   Accordingly, we find that the additions

to tax under sections 6651(a)(1), 6651(a)(2) and 6654 are
                               - 8 -

applicable in the respective amounts set forth in the notice of

deficiency.

     Respondent requests that this Court impose a penalty

pursuant to section 6673 because petitioner has instituted this

proceeding primarily for delay.   Respondent contends that

petitioner’s position is groundless and/or frivolous, and that

petitioner filed his petition as a protest to paying income

taxes.

     Section 6673(a)(1) provides that this Court may require a

taxpayer to pay to the United States a penalty not in excess of

$25,000 whenever it appears that:   (1) The taxpayer instituted or

maintained the proceedings primarily for delay; (2) the

taxpayer’s position in the proceeding is frivolous or groundless;

or (3) the taxpayer unreasonably failed to pursue available

administrative remedies.

     We have previously imposed a penalty pursuant to section

6673(a)(1) against petitioner for asserting arguments similar to

those advanced herein.   In docket No. 16369-05L, petitioner

raised similar frivolous arguments with respect to collection of

his income tax liabilities for 2000, 2001, and 2002, and

respondent filed a motion to dismiss for failure to state a claim

upon which relief can be granted and to impose a penalty under

section 6673.   On December 23, 2005, this Court entered an order

of dismissal and decision in docket No. 16369-05L that respondent
                                 - 9 -

could proceed with the collection of petitioner’s tax liabilities

for 2000, 2001, and 2002, and we imposed a $5,000 penalty

pursuant to section 6673(a)(1).

     We find that petitioner has asserted frivolous and

groundless arguments in this proceeding which are similar to

those advanced in his prior case before this Court.       We also find

that petitioner instituted this proceeding primarily for delay.

Consequently, we hold that petitioner is liable for a $5,000

penalty pursuant to section 6673(a)(1).

     To reflect the foregoing,

                                              An appropriate order of

                                         dismissal and decision will be

                                         entered for respondent.
