                      T.C. Memo. 1997-391



                  UNITED STATES TAX COURT



        ROLAND ALLEN PELLETIER, SR., Petitioner v.
       COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15706-94.              Filed August 25, 1997.



     Roland Allen Pelletier, pro se.

     Edward J. Laubach, Jr., for respondent.



                      MEMORANDUM OPINION

     WHALEN, Judge:   Respondent determined the following

deficiencies in, and additions to, petitioner's income tax

for taxable years 1984 through and including 1992:
                             - 2 -


                                   Additions to Tax
    Year        Deficiency      Sec. 6651     Sec. 6654

    1984        $4,086          $677            $149
    1985         5,348           871             173
    1986         6,076           971             162
    1987        72,764        17,607           3,395
    1988         5,199           698             161
    1989         5,583           748             183
    1990         5,962           796             189
    1991         6,183           824             171
    1992         6,626         1,039             170


All section references are to the Internal Revenue Code

as in effect during the years in issue.

     Petitioner did not file a timely income tax return

for any of the above taxable years.    Respondent computed

petitioner's tax for each of those years on the basis of

the wages, pension income, interest income, and capital

gains reported to the Internal Revenue Service and

determined the above deficiencies and additions in the

subject notice of deficiency.    Petitioner bears the burden

of proving that the tax deficiencies and additions to tax

determined by respondent are wrong.    Rule 142(a).    All

Rule references are to the Tax Court Rules of Practice and

Procedure.    The issue for decision is whether petitioner

has met that burden.

     Petitioner resided in Bushkill, Pennsylvania, at the

time he filed the instant petition.    The petition states

as follows:
                            - 3 -




     I disagree with all charges, changes and
     adjustments in the Notice of Deficiency. It
     is my contention that the 16th Amendment to
     the Constitution is illegal in that it violates
     the basic body of the Constitution (as ratified),
     tramples over the bill of rights and, collects
     taxes upon wages rather than Income as specified
     in the amendment.

     Cite: Alexander Hamilton, Federalist # 78:
     "There is no position which depends on clearer
     principles than that every act of a delegated
     authority, contrary to the tenor of the commis-
     sion under which it is exercised, is void. No
     legislative act, therefore, contrary to the
     Constitution can be valid."


     The Court calendared this case for trial at a trial

session of the Court scheduled to commence in Pittsburgh,

Pennsylvania.   The Court also issued the Standing Pre-Trial

Order directing the parties, among other things, to submit

a trial memorandum not less than 15 days before the first

day of the trial session.

     The Court received petitioner's trial memorandum

several months before the date scheduled for the trial

session.   Petitioner's trial memorandum states that he

intended to call no witnesses.   As to the issues in the

case, petitioner's trial memorandum states:   "See

Attached."   One attachment, entitled "STIPULATIONS OF

Fact", sets forth 20 "facts *** to be stipulated or not
                                - 4 -


stipulated by counsel".       The so-called facts enumerated

include such statements as:


          1. That the 16th Amendment to the
          Constitution as proposed in 1909 and
          ratified in 1913 is illegal upon its
          face, in that it is repugnant to the
          basic body of the Constitution (Art.
          1, Sec. 8) and Art. 1, Sec. 2). That
          it purports to be a law setting itself
          above the law contained in the original
          Constitution as ratified.

                *   *     *     *   *   *   *

     5. That Art. 1, Sec. 8 of the Constitution states
     for what purpose a "Direct Tax" may be levied by
     the Congress and, what the money collected may be
     used for (ie: to pay the debts of the United
     States; to provide for the common defense and, to
     promote the general welfare.

                *   *     *     *   *   *   *

     7. That the Tax Court itself nominally violates
     the provisions of the 7th Amendment to the
     Constitution in that it holds no trial by jury
     in cases exceeding $20.00 or more.

                *   *     *     *   *   *   *

     9. That the definition of Income as it relates to
     taxes is a "gain" which includes profits.

                *   *     *     *   *   *   *

     12. That the "Withholding Tax" is illegal.


The second attachment lists six "articles and writings"

such as an article entitled "Founders foresaw our Servitude

in Taxation".   The third attachment to petitioner's trial

memorandum is entitled "Brief On Illegal Taxation", wherein
                              - 5 -


petitioner sets forth his principal contention that the

16th Amendment to the Constitution is "invalid and void."

Petitioner also sets forth therein a number of other

contentions, such as "wages do not constitute 'Income'

under the Constitution and laws", and "The Emancipation

Proclamation of 1865 guarantees to every person the

sanctity of his own labor."

     Shortly after receiving petitioner's trial memorandum,

the Court issued an order in which we cited Abrams v. Com-

missioner, 82 T.C. 403 (1984), and Rowlee v. Commissioner,

80 T.C. 1111 (1983), and we advised petitioner that the

tax protester arguments set forth in the attachments to

his trial memorandum had been considered and rejected by

the Court in the past and would likely be rejected in this

case.   We warned petitioner that the Court could impose

sanctions, pursuant to section 6673, if the Court found

that a taxpayer's position in a proceeding was maintained

for delay or was frivolous or groundless.   Finally, we gave

petitioner an opportunity to submit a new trial memorandum

and to set forth arguments other than the tax protester

arguments contained in his first trial memorandum.

We advised petitioner that in the event he did not submit

a new trial memorandum, the Court would infer that he

wished to proceed at trial on the basis of the arguments
                            - 6 -


he made in the trial memorandum he had already submitted.

Petitioner did not submit a new trial memorandum to the

Court.

     Shortly thereafter, respondent filed a motion for

judgment on the pleadings in which respondent states that

the only issue raised by petitioner is:


     whether the Sixteenth Amendment to the Constitu-
     tion is illegal because it violates the basic
     body of the Constitution, tramples over the Bill
     of Rights, and collects taxes upon wages rather
     than income as specified in the amendment.


The memorandum filed by respondent in support of the motion

cites various cases in which the Courts of Appeals have

upheld the 16th Amendment to the Constitution and cases in

which courts have rejected the contention that wages are

not income.   Respondent's memorandum also states as

follows:


     The Third Circuit Court of Appeals, to which
     circuit an appeal would lie in this case, has
     also held that wages are income within the
     meaning of the Sixteenth Amendment and considers
     any arguments to the contrary to be frivolous
     subjecting the party asserting them to possible
     sanctions. United States v. Connor, 898 F.2d
     942, 943-44 (3d Cir. 1990).


We calendared respondent's motion for a hearing at the

Pittsburgh, Pennsylvania, trial session.
                           - 7 -


     When this case was called for trial and for a hearing

on respondent's motion for judgment on the pleadings,

petitioner called no witnesses and offered no documents

or other evidence for the record.    Petitioner merely

reiterated the tax protester arguments that are set forth

in the attachments to his trial memorandum.    Specifically,

petitioner argued that the 16th Amendment to the

Constitution is unconstitutional and that wages are not

income.

     As we advised petitioner in the Order described above,

petitioner's arguments have previously been considered and

rejected by this and other courts.    See, e.g., United

States v. Connor, 898 F.2d 942 (3d Cir. 1990); Coleman v.

Commissioner, 791 F.2d 68, 70 (7th Cir. 1986); Connor v.

Commissioner, 770 F.2d 17, 20 (2d Cir. 1985); Perkins v.

Commissioner, 746 F.2d 1187, 1188 (6th Cir. 1984), affg.

per curiam T.C. Memo. 1983-474; Funk v. Commissioner, 687

F.2d 264, 265 (8th Cir. 1982), affg. per curiam T.C. Memo.

1981-506; Abrams v. Commissioner, supra; Rowlee v.

Commissioner, supra.

     In view of the fact that petitioner called no

witnesses and introduced no other evidence into the

record, we find that petitioner has not met his burden

of disproving the determinations made by respondent in
                             - 8 -


the notice of deficiency.    See Rule 142(a).   Accordingly,

we hereby sustain the deficiencies and additions set

forth in the notice of deficiency.    We need not consider

respondent's motion for judgment on the pleadings, and we

will deny respondent's motion as moot.

     In view of the fact that petitioner disregarded the

Court's warning and persisted in presenting at trial the

tax protester arguments advanced in his trial memorandum

that have been rejected by the courts in the past, we

find that petitioner instituted or maintained this case

primarily for delay, and we find that petitioner's position

in this case is frivolous.    Accordingly, we will require

petitioner to pay to the United States a penalty in the

amount of $10,000, pursuant to section 6673(a).

     To reflect the foregoing,


                                      An appropriate order

                                 and decision will be entered.
