                 T.C. Memo. 2000-217



                UNITED STATES TAX COURT



     ROBERT EMMETT ROBERTSON, III, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 20076-96.           Filed July 18, 2000.



     P and R filed stipulations that resolved most of the
issues in this case. R conceded the issues not resolved by
the stipulations. P asks us to characterize certain items
as business income (Sched. C) rather than Sched. B interest
income. The characterization of these items will not change
P’s deficiency.

     Held: We decline to hold that the items in question
are business income.



Robert Emmett Robertson III, pro se.

Robert E. Williams, Jr., for respondent.
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             MEMORANDUM FINDINGS OF FACT AND OPINION

     CHABOT, Judge:   Respondent determined deficiencies in

individual income tax and additions to tax under sections

6651(a)(1)1 (late filing of tax return) and 6653(a) (negligence,

etc.) against petitioner as follows:

                                   Additions to Tax
Year Deficiency Sec. 6651 Sec. 6653(a) Sec. 6653(a)(1) Sec. 6653(a)(2)
1981    $11,194               $560
1982     14,406    $3,602                    $720       50% interest
                                                         on $14,406
1983      2,843                               142       50% interest
                                                           on 2,843
1984      1,212       165                      61       50% interest
                                                           on 1,212
1985      6,332                               317       50% interest
                                                           on 6,332

     After concessions2 the issue for decision is whether a

certain income item for 1981 and a certain income item for 1982

should be treated as income from trades or businesses or as

interest income, not from trades or businesses.

                          FINDINGS OF FACT

     Some of the facts have been stipulated; the stipulations and

the stipulated exhibits are incorporated herein by this

reference.



     1
      Unless indicated otherwise, all section references are to
sections of the Internal Revenue Code of 1954 as in effect for
the years in issue.
     2
      The parties filed two sets of stipulations, with a total of
63 paragraphs, resolving numerous issues. At trial, respondent
orally conceded all the additions to tax and all the remaining
matters in dispute, except for the issue for decision in this
opinion.
                                - 3 -

     When the petition was filed in the instant case, petitioner

resided in Baltimore, Maryland.

Procedural History

     The instant case was first calendared for trial at a trial

session beginning January 26, 1998.     Petitioner’s January 2,

1998, continuance motion was granted because of petitioner’s

representations as to his health status.

     The case was then calendared for trial at the Baltimore,

Maryland, trial session, beginning December 14, 1998.     At the

December 14, 1998, trial session petitioner orally moved that the

case be continued and that the place of trial be moved from

Baltimore to Washington, D.C.   Respondent did not object to this

motion.   The case was continued, the place of trial was changed

to Washington, D.C., and jurisdiction of the instant case was

retained by the same division of the Court.

     After a series of telephone calls to assist the parties to

either settle or sharpen the unsettled issues, on August 24,

1999, the case was calendared for trial at the Washington, D.C.,

trial session beginning November 29, 1999.

     At the November 29, 1999, calendar call, petitioner asked

that the case be set for trial at the end of the 2-week session.

On December 10, 1999, the case was recalled for trial.     The

parties filed two sets of stipulations with a total of 63

paragraphs.   These stipulations disposed of substantially all the
                                 - 4 -

issues.   Respondent then orally conceded all the additions to

tax, a 1981 partnership loss item, and a 1981 capital loss item

resulting in a carryover to 1982.    Respondent’s counsel

represented that this disposed of all the issues, except that

petitioner had advised him “approximately five minutes ago” of an

intent to raise another issue.

     After some discussion as to petitioner’s contentions, the

following colloquy occurred:

          THE COURT: You were prepared    -- today was supposed to
     be the trial, so you were prepared   to offer whatever
     evidence you need to offer on this   matter, or do you think
     that the evidence in the record is   sufficient to enable you
     to make your argument?

          MR. ROBERTSON: I think what we have entered on the
     record is sufficient, yes, I do.

     Petitioner then filed (1) a Motion for Continuance to Remedy

Discovery Improperly Denied Petitioner, (2) a Motion for

Continuance due to Difficulty Stipulating, (3) a Motion for

Continuance to Subpoena Witnesses Necessitated by Belated Denial

of Transcript, (4) a Motion for Continuance to Obtain Transcript

Evidence Improperly Denied Petitioner, and (5) a Motion to Set

Aside Results of 1989 Hearing Made Defective by Lack of

Transcript.   After oral argument, the Court denied all of these

motions for reasons set forth in the transcript of proceedings.
                                 - 5 -

The “Dispute”

     On his 1981 tax return, petitioner reported $10,513 as

income on a Schedule C under the business name Project

Identification Team.   The parties’ stipulations include the

following:

          15. For 1981, the petitioner received interest income
     in the amount of $11,219 from Fidelity Investments.

          16. For 1981, the petitioner reported as gross
     receipts on his 1981 tax return, Schedule C, $10,513 of the
     $11,219 interest income which he received from Fidelity
     Investments.

          17. For 1981, the petitioner did not report anywhere
     on his 1981 tax return the remaining $706 [$11,219 - $10,513
     = $706] in interest income received from Fidelity
     Investments.

                 *     *    *     *       *   *   *

          30. For 1981, the $10,513 reported by petitioner on
     his 1981 Schedule C as gross receipts was actually interest
     income.

                 *     *    *     *       *   *   *

          35. For 1982, the petitioner received $12,298 in
     interest income from Fidelity Investments.

                                OPINION

     Petitioner contends that certain income from Fidelity

Investments ($10,513 for 1981, $12,298 for 1982) should be

treated as Schedule C business income rather than Schedule B

nonbusiness interest income.
                               - 6 -

     Respondent contends that petitioner has failed to carry his

burden of proof and that the matters are not properly before the

Court.

     We agree with respondent’s conclusion and in part with

respondent’s analysis.

     Firstly, at trial we repeatedly asked petitioner whether the

change in characterization of the income would make any

difference to the decision to be entered for any of the years in

the instant case.   Neither at trial nor on brief did petitioner

direct our attention to any way in which the decision would be

affected, and the Court has not found in the record any way in

which the decision would be affected, except to possibly increase

a deficiency because of self-employment tax.   Under these

circumstances, we decline to determine in the instant case

whether the income items are properly Schedule C items.   See

Chevron Corp. v. Commissioner, 98 T.C. 590 (1992); LTV Corp. v.

Commissioner, 64 T.C. 589 (1975).

     Secondly, petitioner has not directed our attention to, and

we have not found, any evidence in the record from which we might

fairly conclude that it is more likely than not that either of

petitioner’s Fidelity Investment income items for 1981 and 1982

is income from a trade or business then carried on by petitioner.

     Thirdly, the parties’ stipulations explicitly provide that

the 1981 income item reported by petitioner as Schedule C gross
                               - 7 -

receipts was actually interest income; the parties seem to read

the stipulation as to the 1982 item the same way.    We conclude

that justice does not require us to relieve petitioner from the

effect of the parties’ stipulations.   See Rule 91(e), Tax Court

Rules of Practice and Procedure; Louisiana Land & Exploration Co.

v. Commissioner, 90 T.C. 630, 648 (1988).

                   _____________________________

     Time after time petitioner has interposed objections or new

considerations which have had the effect of delaying resolution

of the instant case and only rarely have affected the decision to

be entered.   Petitioner stated that the matters dealt with in

this opinion were raised after discussion with an unnamed tax

adviser.   Notwithstanding petitioner’s frequent protestations

about his inability to understand the tax laws and our agreement

with him that much of the Internal Revenue Code would challenge

an Einstein, we are satisfied from our observations of petitioner

that he has a reasonably good understanding of the essentials of

those Code provisions that apply to him.    Under these

circumstances, if petitioner proceeds in a like manner in a

future case, he should understand that the Court may be inclined

to give serious consideration to imposition of a penalty under

section 6673.   Petitioner may not be then able to hide behind the

asserted advice of his unnamed tax adviser.
                              - 8 -



     To give effect to the parties’ stipulations and respondent’s

concessions,



                                           Decision will be entered

                                      under Rule 155.
