Blair v. Comm'r , 112 T.C.M. 577 ( 2016 )

GLEN A. BLAIR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Blair v. Comm'r

Docket No. 17635-14

United States Tax Court

T.C. Memo 2016-215; 2016 Tax Ct. Memo LEXIS 212; 112 T.C.M. (CCH) 577;

November 23, 2016, Filed

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Blair v. Comm'r, T.C. Memo 2002-189">T.C. Memo 2002-189, 2002 Tax Ct. Memo LEXIS 195">2002 Tax Ct. Memo LEXIS 195 (T.C., Aug. 5, 2002)

Decision will be entered under Rule 155.

Glen A. Blair, Pro se.

Adam W. Dayton, for respondent.

BUCH, Judge.

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BUCH

MEMORANDUM OPINION

BUCH, Judge: The parties submitted this case fully stipulated under Rule 122.^*213 The Commissioner issued a notice of deficiency determining a deficiency, an additional tax, and additions to tax with respect to Glen A. Blair's Federal income tax for 2010. Because Mr. Blair stipulated that he received the income, he is liable for tax. Mr. Blair is liable for a section 72(t) additional tax because he stipulated that he received an early distribution from a qualified retirement plan. The Commissioner met his burden of production for additions to tax under section 6651(a)(1) and (2) for failure to timely file and failure to timely pay, and Mr. Blair failed to establish that the additions to tax do not apply. Mr. Blair is not liable for an addition to tax under section 6654 for failure to make estimated tax payments because the Commissioner failed to meet his burden. We will impose a section 6673(a)(1) penalty of $10,000 because Mr. Blair continued to assert frivolous arguments after having been cautioned by the Court in this proceeding and after having been sanctioned by this Court in a previous case.

Background

Mr. Blair is a tax protester.Blair v. Commissioner, T.C. Dkt. No. 6368-05L (Feb. 2, 2006) (order and decision); Blair v. Commissioner, T.C. Memo 2002-189">T.C. Memo 2002-189. We take judicial notice of these previous proceedings.section 6673(a) penalty if he continued to raise frivolous arguments.section 6673 penalty of $10,000.*214 $9,830 from his wages. Mr. Blair received a dividend from Chevron Corp. of $68. Mr. Blair received a total distribution from a qualified retirement plan held at Wells Fargo Bank N.A. of $164,071. Wells Fargo reported that it withheld $32,814 from the distribution and indicated that the distribution was an "[e]arly distribution, no known exception".

Mr. Blair also incurred expenses. Green Tree Servicing, LLC, reported to the Commissioner that Mr. Blair paid $6,356 of mortgage interest, and Wells Fargo reported to the Commissioner that Mr. Blair paid $6,987 of mortgage interest. Mr. Blair does not allege that the interest was qualified residence interest.

Mr. Blair stipulated that he did not file a Federal tax return for 2010.

The Commissioner issued a notice of deficiency determining a deficiency attributable to the wages, dividend, and taxable distribution and a section 72(t) additional tax. The Commissioner also determined additions to tax under sections 6651(a)(1) and (2) and 6654.

While residing in Nevada, Mr. Blair timely petitioned for redetermination of the deficiency. Mr. Blair disputes the determinations made in the notice, challenges the constitutionality of the Code, and asserts that the Internal Revenue Service (IRS) does not have jurisdiction over him.

The case was scheduled for trial at the Court's trial session in Las Vegas, Nevada. When the parties appeared at the calendar call, Mr. Blair argued that he does not have to pay taxes. We disposed of many of his arguments on the record. We warned Mr. Blair that he would risk a section 6673 penalty if he asserted arguments that had already been rejected by this Court. In warning Mr. Blair, we directed him to cases that also addressed his arguments: Kernan v. Commissioner, T.C. Memo 2014-228">T.C. Memo 2014-228, and Waltner v. Commissioner, T.C. Memo 2014-35">T.C. Memo 2014-35, aff'd,659 Fed. Appx. 440">659 Fed. Appx. 440, 2016 U.S. App. LEXIS 18095">2016 U.S. App. LEXIS 18095, 2016 WL 5800492">2016 WL 5800492 (9th Cir. 2016). Because the parties agreed that the facts are not in dispute, the Court deemed the case submitted under Rule 122. Mr. Blair subsequently submitted a memorandum brief where he perpetuated arguments that we have previously rejected.

Discussion

We must decide whether Mr. Blair received taxable income. Additionally, we must decide whether he is liable for an additional tax and additions to tax. Finally, we must decide whether we should impose a section 6673 penalty.

I. Mr. Blair Raises Frivolous and Groundless Arguments.

Mr. Blair asserts various arguments as to why he does not owe tax, including arguments that the Code lacks constitutionality and that the IRS does not have jurisdiction over him. His arguments have been repeatedly rejected, and "[w]e perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit."II. Mr. Blair Received Taxable Income and Is Liable for Income Tax.

None of Mr. Blair's arguments absolves him from his obligations under the Code. "The constitutionality of our income tax system--including the role played within that system by the Internal Revenue Service and the Tax Court--has long been established."Section 1 imposes an income tax on taxable income. Section 63 defines taxable income as gross income minus deductions. Mr. Blair stipulated that he received wages, a dividend, and a distribution from his retirement account. Section 61 defines gross income to include all of these categories of income. Accordingly, Mr. Blair is liable for income tax in the amount determined by the Commissioner.

III. Mr. Blair Is Liable for an Additional Tax Under Section 72(t).

Section 72(t)(1) imposes, with certain exceptions, an additional tax on an early distribution from a qualified retirement plan equal to 10% of the portion of the amount that is includable in gross income. Mr. Blair did not allege that any of the exceptions under section 72(t) applies to the distribution he received from his qualified retirement plan. Accordingly, Mr. Blair is liable for the 10% additional tax on the distribution.Mr. Blair Is Liable for Additions to Tax.

The Commissioner bears the burden of production for additions to tax, and once the Commissioner satisfies his burden, the burden shifts to the taxpayer to prove that an addition to tax should not apply.Failure To Timely File

Section 6651(a)(1) imposes an addition to tax for failure to timely file a Federal income tax return unless the taxpayer shows that the failure was due to reasonable cause and not due to willful neglect.section 6012, and he stipulated that he did not do so. Thus, the Commissioner has met his burden, and the burden shifts to Mr. Blair. Although Mr. Blair argues that he is not required to file a return, he received gross income greater than the exemption amount. He is required to file a return.section 6651(a)(1) addition to tax.

B. Failure To Timely Pay

Section 6651(a)(2) imposes an addition to tax for failure to timely pay the amount of tax shown on a return unless the taxpayer shows that the failure was due to reasonable cause and not due to willful neglect.section 6651(g)(2), a return prepared by the Secretary under section 6020(b), commonly known as a substitute for return, may be treated as the return filed by the taxpayer for the purpose of determining the addition to tax for failure to timely pay. The Commissioner introduced the substitute for return, which satisfied the requirements of section 6020(b), prepared for Mr. Blair. Therefore, the Commissioner has met his burden. The burden shifts to Mr. Blair, and he failed to raise any defense. Accordingly, Mr. Blair is liable for a section 6651(a)(2) addition to tax.

C. Underpayment of Estimated Tax

Section 6654(a) imposes an addition to tax on taxpayers who underpay their required installments of estimated tax. Each required installment of estimated tax is equal to 25% of the "required annual payment", which is equal to the lesser of (1) 90% of the tax shown on the individual's return for that year (or, if no return is filed, 90% of his or her tax for such year) or (2) if the individual filed a return for the immediately preceding taxable year, 100% of the tax shown on that return.section 6654(d)(1)(B).*224 under section 6654(d)(1)(B).*220 Accordingly, Mr. Blair is not liable for a section 6654 addition to tax.

V. Mr. Blair Is Liable for a Section 6673 Penalty.

A section 6673(a)(1) penalty is warranted if the taxpayer has instituted the proceedings primarily for delay, taken a position that is frivolous or groundless, or unreasonably failed to pursue available administrative remedies.section 6673 penalty.*225 "contrary to established law and unsupported by a reasoned, colorable argument for change in the law."*221 by these types of lawsuits.*226 warned about making arguments that had already been rejected by this Court, yet he continued to raise those same arguments. Specifically, in his memorandum brief, Mr. Blair advanced arguments that were rejected at the calendar call and that were rejected in the two cases that the Court cited for him. We will impose a $10,000 sanction.

VI. Conclusion

Mr. Blair raised frivolous and groundless arguments as to why he is not liable for tax. The arguments he raised have been repeatedly rejected. Mr. Blair received income, including an early distribution from a qualified retirement plan; therefore, he is liable for tax and an additional tax. He is liable for additions to tax under section 6651(a)(1) and (2) because he failed to timely file a return and failed to timely pay his total tax. He is not liable for an addition to tax under section 6654 because the Commissioner did not meet his burden. Mr. Blair is liable for a section 6673 penalty of $10,000 because he continued to assert groundless and frivolous arguments.

To reflect the foregoing,

Decision will be entered under Rule 155.

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Footnotes

• 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 (Code) in effect for the year in issue. All monetary amounts are rounded to the nearest dollar.

• 2. "Tax protesters" and "tax defiers" are "[p]ersons who make frivolous anti-tax arguments". Wnuck v. Commissioner, 136 T.C. 498">136 T.C. 498, 502↩ n.2 (2011).

• 3. SeeFed. R. Evid. 201; see also Estate of Reis v. Commissioner, 87 T.C. 1016">87 T.C. 1016, 1026-1027↩ (1986).

• 4. Blair v. Commissioner, T.C. Memo 2002-189">T.C. Memo 2002-189, 84 T.C.M. (CCH) 137">84 T.C.M. (CCH) 137↩, 141 (2002).

• 5. Blair v. Commissioner↩, T.C. Dkt. No. 6368-05L (Feb. 2, 2006) (order and decision).

• 6. Blair v. Commissioner↩, T.C. Dkt. No. 6368-05L.

• 7. Crain v. Commissioner, 737 F.2d 1417">737 F.2d 1417, 1417-1418↩ (5th Cir. 1984).

• 8. Crain v. Commissioner, 737 F.2d at 1417-1418↩.

• 9. See El v. Commissioner, 144 T.C. 140">144 T.C. 140, 145-149 (2015); Bunney v. Commissioner, 114 T.C. 259">114 T.C. 259, 265↩ (2000).

• 10. Seesec. 7491(c); Higbee v. Commissioner, 116 T.C. 438">116 T.C. 438, 446-447↩ (2001).

• 11. Sec. 6651(a)(1); Higbee v. Commissioner, 116 T.C. at 446-447↩.

• 12. Sec. 6012(a)(1)(A); see Wheeler v. Commissioner, 127 T.C. 200">127 T.C. 200, 208 (2006)(the Paperwork Reduction Act is not a defense to section 6651(a)(1)), aff'd, 521 F.3d 1289">521 F.3d 1289 (10th Cir. 2008); Kernan v. Commissioner, T.C. Memo. 2014-228↩, at P22 (stating that the Commissioner is not required to send taxpayers notice that they are required to file returns).

• 13. Sec. 6651(a)(2)↩.

• 14. Sec. 6654(d); see alsosec. 6654(d)(1)(C)↩ (providing that if an individual's adjusted gross income shown on the previous year's return exceeds $150,000, a higher percentage may apply).

• 15. Wheeler v. Commissioner, 127 T.C. at 211↩.

• 16. See also Wheeler v. Commissioner, 127 T.C. at 211-212 (holding that the Commissioner did not meet his burden of production to establish that the taxpayer was required to make annual payments under sec. 6654(d)); Seidel v. Commissioner, T.C. Memo 2007-45">T.C. Memo 2007-45, 93 T.C.M. (CCH) 938">93 T.C.M. (CCH) 938, 940 (2007), aff'd, 324 Fed. Appx 621↩ (9th Cir. 2009).

• 17. Sec. 6673(a)(1)↩.

• 18. Sec. 6673(a)(1)↩.

• 19. Leyshon v. Commissioner, T.C. Memo. 2015-104, at P29-P30, aff'd, 649 F. App'x 299↩ (4th Cir. 2016).

• 20. See Beard v. Commissioner, 82 T.C. 766">82 T.C. 766, 781 (1984) (noting that taxpayer admitted in his brief that he knew Court had rejected arguments similar to his as frivolous and groundless in many prior cases), aff'd, 793 F.2d 139">793 F.2d 139↩ (6th Cir. 1986).

• 21. Takaba v. Commissioner, 119 T.C. 285">119 T.C. 285, 287 (quoting Coleman v. Commissioner, 791 F.2d 68">791 F.2d 68, 71↩ (7th Cir. 1986)).

• 22. Nies v. Commissioner, T.C. Memo. 1985-216, 1985 Tax Ct. Memo LEXIS 418">1985 Tax Ct. Memo LEXIS 418, at *14↩ (quoting Webster's Third New International Dictionary Unabridged).

• 23. See Keating v. Commissioner, T.C. Memo. 1985-312, 1985 Tax Ct. Memo LEXIS 329">1985 Tax Ct. Memo LEXIS 329, at *13-*14; Nies v. Commissioner, T.C. Memo 1985-216">T.C. Memo 1985-216, 1985 Tax Ct. Memo LEXIS 418">1985 Tax Ct. Memo LEXIS 418, at *14↩-*15.

• 24. Coleman v. Commissioner, 791 F.2d at 72↩.

• 25. Blair v. Commissioner, T.C. Memo 2002-189, 84 T.C.M. (CCH) at 140-141; Blair v. Commissioner↩, T.C. Dkt. No. 6368-05L.