                          T.C. Memo. 1997-305



                      UNITED STATES TAX COURT



               ROSEMARY V. COCOZZA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 639-96.                 Filed July 1, 1997.



     Rosemary V. Cocozza, pro se.

     J. Scot Simpson, for respondent.



                          MEMORANDUM OPINION


     BEGHE, Judge:   This case is before the Court on cross-

motions for summary judgment under Rule 121.1   For the year 1992,

respondent determined a deficiency of $8,026 in petitioner’s


     1
       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 year in issue.
                               - 2 -


Federal income tax, an addition to tax of $1,911.50 under section

6651(a) for failure to file an income tax return, and an addition

to tax of $331.20 under section 6654(a) for failure to make

payments of estimated tax.

Background

     The parties have stipulated that during 1992 petitioner

received total wage income of $44,506 from three employers

(Telecable Supply Corp., Lynn Electronics Corp., and Dial America

Marketing, Inc.) and had income tax withholding of only $380, and

that petitioner did not file an income tax return or make any

estimated tax payments for the year.

     Respondent’s statutory notice based its determination on

reports by the payers of wages paid, allowed a personal exemption

allowance and the standard deduction, and computed the tax based

on single filing status.   The statutory notice, in its “Summary

of Income Sources”, also refers to an “aggregate” loss of $3,673

and “realized” loss of $1,023 “paid” to petitioner by Lind-

Waldock & Co. but does not take any such loss into account in

computing petitioner’s tax liability.

     Petitioner was a resident of Port Richey, Florida, at the

time of filing her petition.   Paragraph 4 of the petition, in

which we would expect to find assignments of error, states in its

entirety as follows:   “Petitioner did not engage in any income

excise taxable activities during the year in question, and Title
                              - 3 -


27 CFR is inapplicable to deficiency assessments herein.”    The

petition neither contains a paragraph 5 nor alleges any facts on

which petitioner bases her position in this case.

     Notwithstanding the failure of the petition to set forth any

assignment of error or supporting statements of fact, respondent

did not file a motion to dismiss petitioner’s petition for

failure to state a claim on which relief can be granted.

Respondent instead filed a pro forma answer, setting forth the

following denials:

     3.   Denies that respondent’s determination of a
          deficiency and additions to tax is erroneous.

     4.   Denies.

     5.   Denies generally each and every allegation of the
          petition not hereinbefore specifically admitted,
          qualified or denied.

     On November 21, 1996, the Court’s notice setting case for

trial at the Court’s April 28, 1997, Tampa, Florida, trial

session and standing pretrial order were served on petitioner.

Respondent timely submitted a trial memorandum.   Respondent’s

trial memorandum asserts, notwithstanding petitioner’s failure to

file a tax return for 1992, that she filed returns for 1989

through 1991, reporting wage income of the same order of

magnitude for each of those years as the total wage income

reported by petitioner’s payers for 1992.   Neither respondent’s

trial memorandum nor any other document filed or served on

petitioner by respondent in this case contains any reference to
                                - 4 -


the insufficiency of petitioner’s petition under Rule 34(b)

(which sets forth the required contents of a petition), the lack

of merit of her legal position, the failure to allege any facts,

or the possibility of a penalty under section 6673(a).

     Petitioner and respondent appeared at the calendar call and

filed a stipulation of facts.    At the calendar call, petitioner

lodged and served on respondent a “Memorandum of Law in Support

of Petition”.   At the hearing, respondent’s counsel indicated, in

response to the Court’s questions, that respondent would allow a

loss with respect to Lind-Waldock & Co. if petitioner would

otherwise concede the case.    Petitioner rejected respondent’s

offer; she replied:   “I would truly like to stand on the

memorandum of law that I submitted to the Court and would not be

willing to make that agreement, your Honor.”    The Court thereupon

caused petitioner’s memorandum to be filed as petitioner’s motion

for summary judgment, and respondent countered with an oral

motion for summary judgment.    The Court informed the parties that

respondent need not file any papers in support of respondent’s

cross-motion and that it was taking the matter under advisement.

Discussion

     Although we have inherent power to dismiss a party’s case

for failure to state a claim, see Rule 123(b); May v.

Commissioner, 752 F.2d 1301, 1303-1304 (8th Cir. 1985)(tax

protester arguments, including denial that wages are income;
                              - 5 -


dismissal for failure to state a claim), we believe it is

preferable, in the circumstances of this case, briefly to address

the issue raised by the parties’ cross-motions for summary

judgment.

     Petitioner’s “Memorandum of Law”, which the Court filed as

her motion for summary judgment, looks like a canned brief.    It

rehashes discredited arguments that the income tax is an indirect

tax or excise tax that cannot be laid upon property, that not

only an individual’s labor, but also the income therefrom, is his

or her property, that an excise tax is a privilege tax that it is

unlawful to impose upon the individual’s inalienable right to

exist, which includes his labor, and that the holdings of the

Supreme Court in Stanton v. Baltic Mining Co., 240 U.S. 103

(1916), and Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916), as

interpreted and applied in United States v. Gaumer, 972 F.2d 723,

724-725 (6th Cir. 1992), support her position.2

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Florida Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy "if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

     2
       Petitioner’s Memorandum of Law makes no mention of the
argument in her petition regarding Title 27 C.F.R., and we deem
it to have been abandoned.
                                - 6 -


together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law."   Rule 121(b); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986); Sundstrand Corp. v.

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

Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).

     Because the issue is purely legal, this case is ripe for

summary judgment.   Timeworn discredited arguments that wages are

not taxable income suffice, as an alternative to dismissal, to

justify summary judgment for respondent.   Coleman v.

Commissioner, 791 F.2d 68 (7th Cir. 1986) (wages not income);

Beard v. Commissioner, 82 T.C. 766, 772-774 (1984) (wages not

income), affd. per curiam 793 F.2d 139 (6th Cir. 1986); Cornell

v. Commissioner, T.C. Memo. 1983-370 (wages not income), see also

Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984).   There is

no need for us to spend any time on the arguments in petitioner’s

“Memorandum of Law”.   Petitioner should read the foregoing cases,

if she has not already done so.   We therefore grant respondent’s

motion for summary judgment, sustaining all of respondent’s

determinations, and deny petitioner’s motion.

     We now raise sua sponte whether we should impose a penalty

under section 6673(a) against petitioner on the ground that

petitioner instituted or maintained the proceeding primarily for
                                 - 7 -


delay or that petitioner’s position in this proceeding is

frivolous or groundless.   Although petitioner’s position clearly

has neither legal merit nor factual support, we have no basis in

this record for assessing petitioner’s motives in instituting and

maintaining the proceeding.   There is no evidence in the Court’s

records that petitioner has previously been a litigant in this

Court.   Nor is there any evidence in the record of this case that

petitioner had received any prior warnings in this proceeding, as

would have occurred if respondent had filed a motion to dismiss

the petition on the grounds that it failed to state a claim on

the basis of which relief could be granted.3   In the absence of a

basis in this record for assessing petitioner’s motives, see May

v. Commissioner, supra at 1306-1308, we shall not impose a

penalty under section 6673(a).

     Petitioner’s unwillingness to dispose of this case by

agreement creates the impression that petitioner may wish to file

an appeal.   We conclude by informing petitioner, as we have


     3
       The Court generally responds to such a motion by directing
the taxpayer to file a proper amended petition, as required by
Rule 34(b), setting forth with specificity each error made by
respondent in the statutory notice and separate statements of
fact on which the assignments of error are based. This procedure
gives the Court an opportunity to tell the taxpayer that her
arguments are tax protester arguments that have no merit, that
for the taxpayer to persist in making them would waste everyone’s
time, and to warn the taxpayer that to remain on her original
course will result in the imposition of sanctions under sec.
6673(a). If the taxpayer fails to respond to the Court’s order
or to amend the petition, we generally dismiss the case.
                                 - 8 -


informed other taxpayers advancing arguments having no legal

merit or factual support, see, e.g., Abrams v. Commissioner, 82

T.C. 403, 410-412 (1984); Talmage v. Commissioner, T.C. Memo.

1996-114, affd. without published opinion 101 F.3d 695 (4th Cir.

1996); DiCarlo v. Commissioner, T.C. Memo. 1992-280, that the

Courts of Appeals have their own sanctioning powers to deal with

frivolous appeals.    Sec. 7482(c)(4); 28 U.S.C. sec. 1912 (1994);

Fed. R. App. P. 38.   The Court of Appeals for the Eleventh

Circuit, to which an appeal in this case would lie, has not

hesitated in appropriate cases to use its power to order

sanctions under these provisions.    See, e.g., Pollard v.

Commissioner, 816 F.2d 603, 605 (11th Cir. 1987); McNair v.

Eggers, 788 F.2d 1509, 1510 (11th Cir. 1986); Biermann v.

Commissioner, 769 F.2d 707 (11th Cir. 1985); see also Coleman v.

Commissioner, supra at 72-73; Mathes v. Commissioner, 788 F.2d

33, 34-36 (D.C. Cir. 1986); Connor v. Commissioner, 770 F.2d 17,

20 (2d Cir. 1985).

     To reflect the foregoing,



                                         An appropriate order and

                                    decision will be entered for

                                    respondent.
