                       T.C. Memo. 1996-64



                     UNITED STATES TAX COURT


                GAYLON L. HARRELL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 7339-95.       Filed February 20, 1996.


     Gaylon L. Harrell, pro se.

     John W. Duncan, for respondent.


                       MEMORANDUM OPINION

     DEAN, Special Trial Judge:   This case is before the Court on

respondent's Motion To Dismiss For Failure To State A Claim Upon

Which Relief Can Be Granted, filed pursuant to Rule 40.1



     1
      Unless otherwise specified, all section references are to
the Internal Revenue Code for the years in issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
            Petitioner resided in Latham, Illinois, at the time the

    Petition in this case was filed.

    Respondent's Notice of Deficiency

            On February 9, 1995, respondent mailed to petitioner a

    notice of deficiency in which she determined the following

    deficiencies and additions to petitioner's Federal income taxes:
Petitioner, Gaylon L. Harrell

    Taxable                                       Additions to Tax
   Year Ended     Deficiency    Sec. 6651(a)(1)   Sec. 6651(f)   Sec. 6654(a)

     1991          $3,436           $859              --             $113
     1992           3,293            823              --               79
     1993           6,374             --            $2,8681           269
       1
         This is the amount shown in respondent's notice of deficiency except on
schedule 2 of the notice which shows this addition to tax to be $3,576. We
have no explanation for the discrepancy.


            The deficiencies in Federal income tax asserted by

    respondent are based on the determination that petitioner

    received compensation from the Minneapolis Postal Data Center and

    taxable pension distributions from "Caterpillar NCP Trust" during

    each of the years 1991, 1992, and 1993, no part of which was

    reported on a tax return due for each of the respective years.

    The additions to tax under section 6651(a)(1) are based on

    respondent's determination that petitioner's failure to file

    timely a tax return for 1991 and 1992 was without reasonable

    cause.      The addition to tax under section 6651(f) for the year

    1993 is based upon respondent's determination that petitioner

    fraudulently failed to file a tax return for the year 1993.                    The

    additions to tax under section 6654 are based on respondent's
                               - 3 -

determination that petitioner underpaid his estimated income tax

for the years 1991, 1992, and 1993.

The Petition and Respondent's Motion To Dismiss

     On May 11, 1995, this Court received and filed petitioner's

petition.   On June 13, 1995, petitioner filed an Amended

Petition.   On July 25, 1995, respondent filed a motion to dismiss

for failure to state a claim upon which relief can be granted

under Rule 40.   Petitioner did not file a notice of objection.

     By Order dated July 27, 1995, this Court directed petitioner

to file a Second Amended Petition on or before August 30, 1995,

stating specific allegations of error in the notice of deficiency

and a separate statement of facts on which petitioner bases the

assignment of each error.   In addition, this Court set a hearing

for respondent's motion on October 2, 1995.   The Court filed

petitioner's second amended petition on September 1, 1995, and a

hearing was held in accordance with the Order.

     Respondent asserts that this case should be dismissed for

failure to state a claim because petitioner failed to allege in

the petition and the amended petition any justiciable error, and

merely asserts frivolous protester-type arguments.   Petitioner's

primary argument, as best we can discern, is that although

"Petitioner did in fact receive payment for services" in the

years at issue, the payments were traded for labor of equal value

from which there can be no taxable gain.
                               - 4 -

Discussion

     Rule 40 provides that a party may file a motion to dismiss

for failure to state a claim upon which relief can be granted.

The Court may dismiss a petition when it appears beyond doubt

that the petitioner can prove no set of facts in support of his

claim that would entitle him to relief.

     Under Rule 34(b)(4) and (5), a petition must contain "Clear

and concise assignments of each and every error which petitioner

alleges to have been committed by the Commissioner in the

determination of the deficiency" and "Clear and concise lettered

statements of the facts on which petitioner bases the assignments

of error".   Moreover, 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).

     In general, determinations made by the Commissioner in a

notice of deficiency are presumed to be 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).

     The petition and amended petitions filed in this case do not

satisfy the requirements of Rule 34(b)(4) and (5).   There is

neither assignment of any error, nor any allegation of fact in

support of a justiciable claim.   Instead, there is nothing in

petitioner's filings but tax protester rhetoric, unsupported
                               - 5 -

assertions, and legalistic gibberish.   Further, petitioners did

not file a proper second amended petition as directed by the

Court in its order dated July 27, 1995.

     It would be wasteful to further elaborate on or evaluate

petitioner's contentions in this opinion.   "[T]o do so might

suggest that these arguments have some colorable merit."   Crain

v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984), affg. per

curiam an unreported Order of this Court.   Petitioner is referred

to respondent's motion to dismiss for citations to cases which

have already adequately addressed petitioner's contentions.

     Petitioner has failed to state a claim upon which relief can

be granted.   Accordingly, so much of respondent's motion as moves

to dismiss with respect to the amount of the deficiencies and

additions under sections 6651(a) and 6654 should be granted.     See

Scherping v. Commissioner, 747 F.2d 478 (8th Cir. 1984).

     We note that respondent has determined an addition to tax

for fraudulent failure to file an income tax return for the year

1993 and in her motion requests that the Court find that there is

due from petitioner an addition to tax under section 6651(f).2

Rule 34(b)(5) relieves petitioner from reciting facts underlying




     2
      Sec. 7741(a) of the Omnibus Budget Reconciliation Act of
1989 (OBRA), Pub. L. 101-239, 103 Stat. 2106, 2404-2405, added
subsec. (f) to sec. 6651 effective in cases of failure to file
returns the due date for which (determined without regard to
extensions) is after December 31, 1989.
                               - 6 -

assignments of error as to which the burden is on respondent.    In

the petition, all additions to tax are disputed.

     When determining whether a failure to file is fraudulent

under section 6651(f), we must consider the same elements as are

considered in imposing the addition to tax for fraud under former

section 6653(b)(1) and the present section 6663.    Clayton v.

Commissioner, 102 T.C. 632, 653 (1994).

     But respondent has yet to file an Answer in this case and

make affirmative allegations in support of her determination as

to the addition to tax for fraudulent failure to file, and

petitioner has not had the opportunity to reply to them.

Therefore, it would be inappropriate to enter a decision for the

section 6651(f) addition.   Brock v, Commissioner, 92 T.C. 1127,

1131-1132 (1989); Caplette v. Commissioner, T.C. Memo. 1993-46.

     It would also be inappropriate to leave open for trial the

frivolous issues raised by petitioner in regard to the

determination of deficiencies and additions to tax other than

under section 6651(f).   We shall therefore treat respondent's

motion to dismiss as a motion for partial judgment on the

pleadings.   See Caplette v. Commissioner, supra.   We find,

therefore, that petitioner is liable for the deficiencies in

Federal income tax and additions to tax under sections 6651(a)(1)

and 6654, as determined in the notice of deficiency.
                                - 7 -

     We would ordinarily caution petitioner that his continuing

advancement of frivolous and groundless protester allegations

might subject him to a penalty under the provisions of section

6673.    Petitioner, however, has already received and ignored such

a warning.    Petitioner is interested only in using the Federal

courts to propound his misguided views on the Federal income tax

system, not in disputing the merits of either the deficiencies in

tax or the additions to tax determined by respondent.      See

Harrell v. United States, 13 F.3d 232, 235 (7th Cir. 1993)

("Harrell's challenge to the tax assessment is frivolous");

Harrell v. Commissioner, T.C. Memo. 1994-406 (petitioner's

argument declared frivolous and sanctions imposed under section

6673), affd. without published opinion 72 F.3d 132 (7th Cir.

1995).    Petitioner should nevertheless note that in view of his

past actions, his persistent assertion in this case of frivolous

and groundless arguments is likely to result in section 6673

sanctions larger than those previously imposed upon him.

                                        An appropriate order will be

                                issued, and this case will be

                                restored to the general docket.
