                         T.C. Memo. 2008-47



                       UNITED STATES TAX COURT



             JOHN P. AND PHAIK HAHN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9139-04.                 Filed March 3, 2008.



     Larry D. Harvey, for petitioners.

     Randall L. Preheim, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121.1




     1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code in effect for the
years in issue.
                                - 2 -

After a concession,2 the sole issue for decision is whether

petitioner John P. Hahn can exclude from income wages earned

during 2000 from working in Antarctica and petitioners can

exclude from income wages earned during 2001 from working in

Antarctica.

                             Background

      At the time they filed the petition, petitioners resided in

Priest River, Idaho.    During 2000, petitioner John P. Hahn

performed services at McMurdo Station in Ross Island, Antarctica.

On his 2000 Federal income tax return, petitioner excluded wage

income earned and received during 2000 for services performed in

Antarctica.   During 2001, petitioners performed services at

McMurdo Station in Ross Island, Antarctica.    On their 2001

Federal income tax return, petitioners excluded wage income

earned and received during 2001 for services performed in

Antarctica.

                             Discussion

I.   Summary Judgment

      Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any material fact


      2
        Respondent concedes that no penalty pursuant to sec. 6662
is due from petitioner John P. Hahn for 2000 or from petitioners
for 2001.
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and that the legal issues presented by the motion may be decided

as a matter of law.    See Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994).    We conclude that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of

law.

II.    In General

       Section 61(a) provides that gross income means all income

from whatever source derived.    Accordingly, citizens of the

United States generally are taxed on income earned outside the

geographical boundaries of the United States unless the income is

specifically excluded from gross income.    Specking v.

Commissioner, 117 T.C. 95, 101-102 (2001), affd. sub nom. Haessly

v. Commissioner, 68 Fed. Appx. 44 (9th Cir. 2003), affd. sub nom.

Umbach v. Commissioner, 357 F.3d 1108 (10th Cir. 2003).

Exclusions from income are construed narrowly, and taxpayers must

bring themselves within the clear scope of the exclusion.       Id.

III.    Section 911

       In Arnett v. Commissioner, 126 T.C. 89, 91-96 (2006) (Arnett

I), affd. 473 F.3d 790 (7th Cir. 2007) (Arnett II), we addressed

the arguments made by the parties herein regarding section 911.

The U.S. Court of Appeals for the Seventh Circuit agreed with our

analysis of section 911 and affirmed our conclusion that

Antarctica is not a “foreign country” pursuant to section 911 and
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the regulations thereunder.       Arnett v. Commissioner, 473 F.3d at

799.       We shall not repeat our analysis from Arnett I herein.   We

follow our analysis and holding in Arnett I and the analysis and

holding of the Court of Appeals in Arnett II.3

IV.    Conclusion

       Accordingly, for the reasons stated in Arnett I, Arnett II,

and herein, we conclude that petitioner John P. Hahn cannot

exclude from gross income wages earned during 2000 from working



       3
        In Arnett v. Commissioner, 126 T.C. 89 (2006), affd. 473
F.3d 790 (7th Cir. 2007), we concluded our Opinion with a
citation of sec. 863(d) suggesting that sec. 863(d) provided an
additional reason to rule against the taxpayer. Id. at 96 (“See
also sec. 863(d) (providing that income earned in Antarctica by a
U.S. person is sourced in the United States).”). In Arnett v.
Commissioner, 473 F.3d at 797, the U.S. Court of Appeals for the
Seventh Circuit addressed sec. 863(d) in greater detail, stating:

            At the outset, we think that it is important to
       note that considering Antarctica not to be a “foreign
       country” is compatible with the general statutory
       scheme. Notably, section 911 is found under subtitle
       A, chapter 1, subchapter N of the IRC, which is
       designated “Tax Based on Income from Sources Within or
       Without the United States.” Part I of this subchapter,
       entitled “Source Rules and Other General Rules Relating
       to Foreign Income,” deems any activity in Antarctica to
       be “space or ocean activity.” In turn, the United
       States is designated the source country of income from
       such activity when earned by a citizen of the United
       States. 26 U.S.C. § 863(d). Although this provision
       does not provide a definitive answer as to whether
       Antarctica is a “foreign country,” it supports the
       conclusion that section 911 is not intended to apply to
       income earned for services provided in Antarctica.

We take this opportunity to state our agreement with the Court of
Appeals’ conclusion set forth above. See also HCSC-Laundry v.
United States, 450 U.S. 1, 6 (1981).
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in Antarctica, and petitioners cannot exclude from gross income

wages earned during 2001 from working in Antarctica.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
