                  T.C. Memo. 2004-187



                UNITED STATES TAX COURT



         BRIAN TIMOTHY BRUNNER, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 5133-03.              Filed August 24, 2004.


     P failed to file a Federal income tax return for the
1997 year. R subsequently determined a deficiency and
additions to tax, which P then contested on the basis of tax
protester arguments.

     Held: P is liable for the deficiency determined by R,
for additions to tax under secs. 6651(a)(1) and 6654,
I.R.C., and for a penalty under sec. 6673, I.R.C.


Brian Timothy Brunner, pro se.

Kathleen K. Raup, for respondent.
                                 - 2 -

                MEMORANDUM FINDINGS OF FACT AND OPINION


     WHERRY, Judge:     Respondent determined a Federal income tax

deficiency for petitioner’s 1997 taxable year in the amount of

$13,504 and additions to tax pursuant to section 6651(a)(1) and

(2) of $2,506.27 and $2,784.75, respectively, and pursuant to

section 6654 of $585.91.1    After concessions,2 the issues for

decision are:

     (1) Whether petitioner is liable for a deficiency in the

amount of $13,504 for the 1997 taxable year; and

     (2) whether petitioner is liable for additions to tax under

sections 6651(a)(1) and 6654.

                           FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulations of the parties, with accompanying exhibits, are

incorporated herein by this reference.    At the time this petition

was filed, petitioner resided in Reading, Pennsylvania.

Petitioner was married as of December 31, 1997.




     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code) in effect for the year in issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
     2
       By answer, respondent conceded the sec. 6651(a)(2) penalty
and sought a correlative increase of $278.48 in the sec.
6651(a)(1) addition to tax, on grounds that the limitations
contained in sec. 6651(c)(1) no longer applied.
                               - 3 -

     During 1997, petitioner received wages in the amount of

$63,101.50 from his employer, National Software, and interest

income in the amount of $20 from the State of California,

resulting in total taxable income for the year of $63,121.50.

National Software withheld $2,365 in Federal income tax from

petitioner’s salary during 1997.   Petitioner did not file a tax

return for 1997.   Respondent issued a notice of deficiency on

December 30, 2002, and determined additions to tax.   Petitioner

timely filed a petition disputing the deficiency and additions to

tax, which petition included lengthy tax protester arguments.

Petitioner is not the subject of any criminal investigation.

                              OPINION

I.   Contentions of the Parties

     Petitioner contends that he is not required to file a

return.   He argues that he has already paid the taxes due through

his withholdings, in that his filing status of “married, filing

jointly” and his 10 total exemptions for himself, his wife, and

his eight children were more than sufficient to reduce his tax

liabilities to an amount fully covered by the withheld

Federal income tax.   In addition, petitioner raises tax protester

arguments under the Fourth, Fifth, Ninth, Thirteenth, and

Sixteenth Amendments to the Constitution in opposition to the

filing requirement.
                                 - 4 -

      Respondent, noting that there is no dispute as to

petitioner’s income, claims that petitioner’s deficiency is

properly determined on the basis of “married, filing separately”

filing status with a standard deduction and one exemption.

Respondent points to the fact that petitioner did not provide any

documentation with respect to his eight children, other than

claiming exemptions for them on his Form W-4, Employee’s

Withholding Allowance Certificate, and that petitioner did not

file a joint return or elect to itemize his deductions.

II.   Petitioner’s Income Tax Liability

      A. General Rules

      Respondent’s determination of petitioner’s tax liability is

presumed correct, and petitioner bears the burden of proving that

the determination is improper.     Welch v. Helvering, 290 U.S. 111,

115 (1933); Rule 142(a).    Although section 7491 may shift the

burden to respondent in specified circumstances, petitioner here

did not satisfy the prerequisites under section 7491(a)(1) and

(2) for such a shift.

      B. Filing Requirement

      The Code imposes a Federal tax on the taxable income of

every individual.   Sec. 1.    Gross income for the purposes of

calculating taxable income is defined as “all income from

whatever source derived”.     Sec. 61(a).   Every U.S. resident

individual whose gross income for the taxable year equals or
                                - 5 -

exceeds the exemption amount is required to make an income tax

return.   Sec. 6012(a)(1)(A).   Petitioner had gross income

totaling $63,121.50 from wages and interest for taxable year

1997.   The exemption amount for taxable year 1997 was $2,650.

Petitioner’s gross income exceeded the exemption amount for the

1997 taxable year, and petitioner was therefore required to file

an income tax return.

     C. Filing Status

     In order to qualify to calculate tax under rates applicable

to “Married Individuals Filing Joint Returns”, an individual must

make a joint return with his or her spouse pursuant to section

6013.   Sec. 1(a)(1).   Joint filing status is not allowable,

unless a joint return is filed and made a part of the record

before the case is submitted to our Court for decision.       Phillips

v. Commissioner, 86 T.C. 433, 441 n.7 (1986), affd. in relevant

part 851 F.2d 1492 (D.C. Cir. 1988)(“where the taxpayer has filed

no return as of the date the case is submitted for decision * * *

no returns would be in the record, and, therefore, no joint

filing status could be claimed.”); Gudenschwager v. Commissioner,

T.C. Memo. 1989-6 (“If a taxpayer has not filed a return by the

time his case is submitted for decision, it is too late for the

taxpayer to file a joint return and elect joint filing status. *

* * In this situation, no returns would be in the record, so this
                                - 6 -

Court would have no basis for finding that the taxpayer had joint

return status.”).

     Neither petitioner nor his spouse filed any returns, joint

or otherwise.    Thus, petitioner is not entitled to claim joint

filing status.   A married person who does not make a joint return

with his or her spouse must use rates specified for “Married

Individuals Filing Separate Returns”.    Sec. 1(d).   Therefore,

respondent was correct in calculating petitioner’s taxes on a

married filing separately basis.

     D. Dependency Exemption Deductions

     The Supreme Court has stated that the extent of any

allowable deduction is a matter of legislative grace.     New

Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).

Petitioner alleges that he filed a Form W-4, indicating a total

of 10 exemptions.    He argues that the Form W-4 is proof of his

entitlement to his claimed 10 exemptions.

     However, petitioner’s Form W-4 is nothing more than his

certification that he believes he is entitled to a claimed number

of withholding allowances.    Form W-4 is merely a declaration

enabling employers to determine the amount of Federal income tax

to withhold from an individual’s pay.    The form is forwarded to

the Internal Revenue Service (IRS) by the employer only if: (1)

The taxpayer claims more than 10 allowances, and (2) the taxpayer

claims “exempt” and the taxpayer’s wages are more than $200 per
                                 - 7 -

week.    IRS Publication 505, Tax Withholding and Estimated Tax, at

10 (Rev. December 1997 ed.).     Petitioner’s argument that

respondent should have taken into account his claimed 10

exemptions based on an awareness of petitioner’s Form W-4

declaration is misplaced.

     Petitioner is entitled to a deduction for at least one

exemption for himself pursuant to section 151(b).     In addition,

an exemption is also allowed for each dependent.     In cases where

a joint return is not filed, an additional exemption is permitted

for a spouse only if the spouse does not have any gross income

and “is not the dependent of another taxpayer”.     Sec. 151(b).   In

order for a “son or daughter of the taxpayer” to be considered a

dependent for 1997, the child must receive over half of his or

her support from the taxpayer during the 1997 taxable year.

Section 152(a)(1).    If the child’s income for 1997 exceeded

$2,650, the child must also be under age 20 or a student under

age 24 at December 31, 1997.     Sec. 151(c)(1).

     However, no exemption is allowed for any individual unless a

Taxpayer Identification Number (TIN) for the individual is

provided on the return claiming the exemption.     Sec. 151(e).3


     3
         Sec. 151(e) provides:

          SEC. 151 (e). Identifying Information Required.--
     No exemption shall be allowed under this section with
     respect to any individual unless the TIN of such
     individual is included on the return claiming the
                                                   (continued...)
                                - 8 -

A TIN is the identifying number of the individual as issued for

social security account purposes.    Secs. 6109(d), 7701(a)(41).

     Petitioner did not provide any information as to the gross

income or the filing status of his spouse.    Thus, we cannot

conclude that petitioner should be permitted an exemption

deduction for his spouse.    Similarly, petitioner failed to

provide not only the names and qualifying information of the

individuals he claims as dependents, but he also neglected to

furnish any TINs.   Accordingly, petitioner is not allowed

exemptions for any dependents or his spouse; petitioner is

entitled to a single exemption for himself.

     E. Standard Deduction

     An individual who does not elect to itemize his deductions

is entitled to the standard deduction.    Sec. 63(b).   An

individual may itemize his deductions for a particular taxable

year by electing to do so under section 63(e).    However, an

individual must make the election on the taxpayer’s return in

order for itemization to be permitted.    Sec. 63(e)(2).

     Petitioner did not file a tax return.    Therefore, petitioner

could not have made an election to itemize his deductions.

Absent a valid election to itemize deductions, petitioner is

entitled only to the standard deduction.



     3
      (...continued)
     exemption.
                                 - 9 -

III. Constitutionality of the Filing Requirement

     Our tax system, the Code, and the Tax Court have been firmly

established as constitutional.     Crain v. Commissioner, 737 F.2d

1417, 1417-1418 (5th Cir. 1984); Ginter v. Southern, 611 F.2d

1226, 1229 (8th Cir. 1979).   Furthermore, each of petitioner’s

specific constitutional arguments has been resoundingly rejected

by the courts.   See, e.g., 4th Amendment--Edwards v.

Commissioner, 680 F.2d 1268, 1270 (9th Cir. 1982) (“Requiring

taxpayers, who institute civil proceedings protesting deficiency

notices, to produce records or face dismissal constitutes no

invasion of privacy or unlawful search and seizure”);4 5th

Amendment--United States v. Sullivan, 274 U.S. 259, 263 (1927)

(ruling that taxpayers cannot use the Fifth Amendment to “refuse

to make any return at all”);5 9th Amendment--Tingle v.

Commissioner, 73 T.C. 816, 816 (1980)(ruling that the Ninth

Amendment was “not intended to abridge the specific power of



     4
       Boyd v. United States, 116 U.S. 616 (1886), relied on by
petitioner, is inapplicable in that the case dealt exclusively
with a criminal, rather than a civil, matter. See also Mapp v.
Ohio, 367 U.S. 643 (1961)(same); Weeks v. United States, 232 U.S.
383 (1914)(same).
     5
       In order for an individual to claim the applicability of
the privilege against self-incrimination, there must be a “real
and appreciable danger” from the “substantial hazards of self
incrimination”, and the individual must have “reasonable cause to
apprehend [such] danger from a direct answer to questions posed
to him”. Neff v. Commissioner, 615 F.2d 1235, 1239 (9th Cir.
1980) (quoting Hoffman v. United States, 341 U.S. 479, 486
(1951)).
                                 - 10 -

Congress to lay and collect taxes from whatever source derived”);

13th Amendment--Kasey v. Commissioner, 457 F.2d 369, 370 (9th

Cir. 1972)(ruling that there was no merit to the argument that

the “record keeping requirements and the requirement that

taxpayers shall prepare and file their tax returns, as

established by the Internal Revenue Code and the Internal Revenue

Service, violate their privilege against self-incrimination under

the Fifth Amendment and amount to involuntary servitude,

prohibited by the Thirteenth Amendment”) affg. 54 T.C. 1642

(1970); 16th Amendment--Abrams v. Commissioner, 82 T.C. 403, 406-

407 (1984)(“The Federal income tax laws are constitutional. * * *

The whole purpose of the 16th Amendment was to relieve all income

taxes when imposed * * * from a consideration of the source

whence the income was derived”).

IV.   Additions to Tax

      Respondent bears the “burden of production in any court

proceeding with respect to the liability of any individual for

any * * * addition to tax”.     Sec. 7491(c).   To meet this burden,

the Commissioner must come forward with sufficient evidence

indicating that it is appropriate to impose the relevant penalty

or addition to tax.      Higbee v. Commissioner, 116 T.C. 438, 446

(2001).   In instances where an exception to the penalty or

addition of tax is afforded upon a showing of reasonable cause,

the taxpayer bears the burden of showing such cause.      Id. at 447.
                                - 11 -

Respondent also has the burden of proof with respect to any

increases in amount over those shown in the notice of deficiency.

Rule 142(a).

     Section 6651(a) provides that there will be a 5-percent

addition to tax for each month the return is late, not to exceed

25 percent in the aggregate, imposed upon a taxpayer for failure

to file a tax return or pay tax, unless such failure to file is

due to reasonable cause and not due to willful neglect.    Although

not defined in the Code, “reasonable cause” is viewed in the

applicable regulations as the “exercise of ordinary business care

and prudence”.   Sec. 301.6651-1(c)(1), Proced. & Admin. Regs; see

also United States v. Boyle, 469 U.S. 241, 246 (1985).    “Willful

neglect” can be interpreted as a “conscious, intentional failure

or reckless indifference.”     United States v. Boyle, supra at 245.

Based on the record in this case, we conclude that respondent’s

relevant burdens of production and proof have been met, and

petitioner has not provided any evidence that his failure to file

was due to reasonable cause.    Therefore, the Court sustains the

imposition of an addition to tax under section 6651(a)(1).

     Section 6654(a) provides for an addition to tax for failure

to pay estimated income tax where there has been an underpayment

of estimated taxes by a taxpayer.    Since the Court finds that

petitioner’s situation does not fall within any of the specified
                              - 12 -

exceptions under section 6654(e), petitioner also is liable for

this addition to tax.

V.   Section 6673 Penalty

     Section 6673 allows this Court to award a penalty to the

United States in an amount not in excess of $25,000 for

proceedings instituted by the taxpayer primarily for delay or for

proceedings in which the taxpayer’s position is frivolous or

groundless.   “A petition to the Tax Court, or a tax return, is

frivolous if it is contrary to established law and unsupported by

a reasoned, colorable argument for change in the law.”     Coleman

v. Commissioner, 791 F.2d 68, 71 (7th Cir. 1986)(imposing

penalties on taxpayers who made frivolous constitutional

arguments in opposition to the income tax).   Courts have ruled

that constitutional defenses to the filing requirement, such as

petitioner presents, are groundless and wholly without merit.

Ginter v. Southern, 611 F.2d 1226, 1229 (8th Cir. 1979); see also

Williams v. Commissioner, T.C. Memo. 1999-277 (imposing section

6673 penalty for tax protester arguments); Morin v. Commissioner,

T.C. Memo. 1999-240 (imposing section 6673 penalty for tax

protester arguments); Sochia v. Commissioner, T.C. Memo. 1998-294

(imposing section 6673 penalty for filing frivolous appeals).

     Groundless litigation diverts the time and energies of
     judges from more serious claims; it imposes needless costs
     on other litigants. Once the legal system has resolved a
     claim, judges and lawyers must move on to other things.
     They cannot endlessly rehear stale arguments. Both
     appellants say that the penalties stifle their right to
                             - 13 -

     petition for redress of grievances. But there is no
     constitutional right to bring frivolous suits, see Bill
     Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743, 103
     S.Ct. 2161, 2170, 76 L.Ed.2d 277 (1983). People who wish to
     express displeasure with taxes must choose other forums, and
     there are many available. * * * [Coleman v. Commissioner,
     supra at 72.]

The Court is satisfied that a penalty in this case is

appropriate, and, therefore, chooses to exercise its discretion

sua sponte under section 6673(a)(1) in requiring petitioner to

pay a penalty in the amount of $1,000 to the United States.

     To reflect the foregoing,



                                        An appropriate decision

                                   will be entered for respondent

                                   with respect to the deficiency

                                   and additions to tax under

                                   sections 6651(a)(1) and 6654

                                   and imposing a penalty under

                                   6673(a)(1) and to reflect

                                   concessions made by

                                   respondent, for petitioner

                                   with respect to additions to

                                   tax under section 6651(a)(2).
