                           T.C. Summary Opinion 2013-7



                         UNITED STATES TAX COURT



              ELMO HOLLIE THIBODEAUX, JR., Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 26124-11S.                        Filed February 6, 2013.



      Elmo Hollie Thibodeaux, Jr., pro se.

      Sandy Hwang, for respondent.



                               SUMMARY OPINION


      KERRIGAN, Judge: This case was heard pursuant to the provisions of

section 7463 of the Internal Revenue Code in effect when the petition was filed. The

decision to be entered is not reviewable by any other court, and this opinion shall

not be treated as precedent for any other case. Unless otherwise indicated, all
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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.

      Respondent determined a Federal income tax deficiency of $2,284 for 2009.

The issue for our consideration is whether petitioner received gross income of

$30,017 for tax year 2009.

                                      Background

      Some of the facts have been stipulated and are incorporated in our findings.

Petitioner resided in California at the time of the petition.

      In 2009 petitioner worked for Conti Electric, Inc., and Shimmick Obayashi

Joint Venture and received $19,889 and $10,128, respectively, for a total of

$30,017. Respondent received Forms W-2, Wage and Tax Statement, from Conti

Electric, Inc., and Shimmick Obayashi Joint Venture showing $30,017 of wages

paid to petitioner.

      Petitioner filed timely Form 1040EZ, Income Tax Return for Single and Joint

Filers With No Dependents, for the 2009 tax year. His return showed no income

and no income tax withheld. Petitioner submitted a second Form 1040EZ to the

Appeals Office, but the Internal Revenue Service did not process it. On his second

Form 1040EZ petitioner showed no income but claimed a refund of $2,296 for

income tax withheld.
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      On April 1, 2011, petitioner signed a Form 4852, Substitute for Form W-2,

Wage and Tax Statement, or Form 1099-R, Distributions From Pensions, Annuities,

Retirement, or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. This form

shows that Conti Electric, Inc., and Shimmick Obayashi Joint Venture withheld

Social Security and Medicare taxes totaling $2,296. Petitioner never paid income

tax on his wages for 2009. On August 15, 2011, respondent sent petitioner a

statutory notice of deficiency for petitioner’s 2009 tax year.

                                      Discussion

      Generally, the Commissioner’s determinations are presumed correct, and the

taxpayer bears the burden of proving that those determinations are erroneous. Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Under section 7491(a), the

burden of proof may shift from the taxpayer to the Commissioner if the taxpayer

produces credible evidence with respect to any factual issue relevant to ascertaining

the taxpayer’s liability. Petitioner does not contend that the burden of proof should

be shifted to respondent under section 7491(a), and the record does not suggest any

basis for a shift. In addition, petitioner admitted to receiving the wages in dispute.

      Section 61 provides “gross income means all income from whatever source

derived”. Section 61(a)(1) includes as income “compensation for services,
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including fees, commissions, fringe benefits, and similar items”. The Supreme

Court has held consistently that “gross income” was meant to bear “‘the full

measure of the taxing power.’” Commissioner v. Glenshaw Glass Co., 348 U.S.

426, 429 (1955) (quoting Helvering v. Clifford, 309 U.S. 331, 334 (1940)). The

liability for the payment of the income tax is on the individual earning the income.

Lucas v. Earl, 281 U.S. 111, 114-115 (1930). The taxpayer has the burden of

demonstrating that his accession to wealth is exempt from taxation. Commissioner

v. Glenshaw Glass Co., 348 U.S. at 430.

      Petitioner, a resident of California, is a taxpayer subject to Federal income tax

who is obliged to file Federal income tax returns and pay Federal income tax on his

income, specifically including wages. See secs. 1, 61(a), 6012(a), 7701(a)(1), (14);

see also United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981)

(“Compensation for labor or services, paid in the form of wages or salary, has been

universally, held by the courts of this republic to be income, subject to the income

tax laws currently applicable.”).

      Respondent determined that for 2009 petitioner received and failed to report

gross income in the form of wages. Petitioner received wages from third-party

payors. These wages were not excludable from gross income. Petitioner argues

that his wages are excludable from gross income. He contends that to be includible
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in gross income his wages have to come from a privileged activity. Section 61(a)

defines gross income as “all income from whatever source derived”. Section

61(a)(1) includes compensation for services. Section 63(a) defines taxable income

as gross income minus deductions. Petitioner did not make a valid argument that his

wages are excludable from gross income because of any specific provision of law.

See Rodriguez v. Commissioner, T.C. Memo. 2009-92. We do not need to discuss

petitioner’s frivolous and groundless argument. See Crain v. Commissioner, 737

F.2d 1417 (5th Cir. 1984); Heisey v. Commissioner, T.C. Memo. 2002-41, aff’d, 59

Fed. Appx. 233 (9th Cir. 2003).

      To reflect the foregoing,


                                                   Decision will be entered

                                             for respondent.
