Kinkade v. Commissioner

KERMIT W. KINKADE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Kinkade v. Commissioner

No. 604-98

United States Tax Court

T.C. Memo 1999-180; 1999 Tax Ct. Memo LEXIS 219; 77 T.C.M. (CCH) 2077; T.C.M. (RIA) 99180;

June 1, 1999, Filed

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An appropriate order will be issued, and decision will be entered for respondent.

Kermit W. Kinkade, pro se.

D. Lyndell Pickett, for respondent.

Beghe, Renato

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BEGHE

MEMORANDUM OPINION

BEGHE, JUDGE: Respondent determined the following deficiencies in and additions to petitioner's Federal income taxes:

                    Additions to Tax

               _____________________________________

Year       Deficiency    Sec. 6651(a)(1)      Sec. 6654(a)

____       __________    _______________      ____________

1992       $ 4,008      $ 1,002           ___

1993        10,387       2,597          $ 318

1994        8,861       2,215           359

All section references are to the Internal Revenue Code in effect for the years in issue. All monetary amounts have been rounded to the nearest dollar.

BACKGROUND

Petitioner filed a pro se petition using a form that had obviously been prepared by someone else. Petitioner disputed respondent's determinations, but he failed to allege any facts in support of his position. Petitioner attached to his petition Exhibit "A", stating as follows:

               EXHIBIT "A"

   DEMAND IS MADE THAT THE TAX COURT TRANSFER THIS CASE TO THE

   APPELLATE DIVISION OF THE IRS ON THE GROUNDS THAT THIS TAXPAYER

   HAS BEEN DENIED DUE PROCESS OF LAW, AND HAS A SUBSTANTIAL CLAIM

   UNDER THE "NEW" TAXPAYER BILL OF RIGHTS, AGAINST THE AGENT AND

   THE IRS, PLUS OTHER CAUSES OF ACTION THAT HAVE NOT BEEN FULLY

   DETERMINED AS OF THE PRESENT DATE.

         AVOIDANCE AND/OR AFFIRMATIVE DEFENSES

   PETITIONER ALLEGES AS AN AVOIDANCE AND/OR AFFIRMATIVE DEFENSE

   EACH OF THE FOLLOWING THAT HAVE BEEN MARKED BY AN "X" ON THE

   LINE BEFORE THE ITEM LISTED:

   X RES JUDICATA

   X ESTOPPEL

   X WAIVER

   X DURESS

   X FRAUD

   X STATUTE OF LIMITATIONS

   X INVALID NOTICE OF DEFICIENCY NOT COMPLYING  WITH THE TAX CODE

    PROVISIONS

   X FAILURE TO PROVIDE FREEDOM OF INFORMATION ACT DOCUMENTS AND

    MATERIALS NECESSARY FOR PETITIONER TO PREPARE FOR TRIAL

   X FAILURE OF RESPONDENT TO "FULLY COOPERATE" AS PROVIDED BY THE

    STANDING ORDER

   X FAILURE OF RESPONDENT TO EXHAUST ADMINISTRATIVE REMEDIES. NO

    PRIOR CONTACT

   X LACHES

   X THE "CLEAN HANDS" DOCTRINE (UNCLEAN HANDS OF RESPONDENT)

   X ILLEGALITY

   X FAILURE OF JURISDICTION OVER PETITIONER DISCHARGE IN

    BANKRUPTCY OTHER

This case was calendared for trial at the Court's Louisville, Kentucky, trial session beginning January 11, 1999. It came to the Court's attention that petitioner had another case for 1995, docket No. 7944-98, that was calendared for trial at the Court's Louisville, Kentucky, trial session beginning February 16, 1999. The petition disputing respondent's determinations in petitioner's 1995 case interposed the same laundry list of "Avoidance and/or Affirmative Defenses".

The Court calendared the case at docket No. 7944-98 for oral report with this case at the January 11, 1999, Louisville trial session.

Respondent served a timely trial memorandum alerting petitioner that respondent would seek a penalty under section 6673 against petitioner for asserting groundless and frivolous positions. The Court attempted to have a pretrial telephone conference with the parties, but was unable to do so because petitioner had not provided a current address and telephone number. At the calendar call, respondent filed a motion for the imposition of a penalty under section 6673, reciting that respondent had furnished petitioner copies of section 6673 and relevant court opinions. Petitioner submitted a "trial memorandum", consisting of a 10-page canned brief replete with frivolous arguments about the invalidity of the Federal income tax laws as applied to him, and a "Supplement Stipulation of Facts" with more than 200 pages of exhibits, including a copy of a 158-page preprinted document entitled "RELIANCE DEFENSE" as Exhibit 7-J, prepared by "William Drexler, Esq., Juris Doctor", which petitioner characterized as follows:

     This Petitioner relies on the knowledge that he is subject

   to an income tax if he was involved in any activity that is

   harmful or evil or detrimental to the well being of a sovereign

   Citizen of the United States; and any one involved in a

   privilege granted or licensed by the State or Federal Government

   is also subject to income tax.

     This Petitioner informed and hereby relies on Reliance

   Defense, supra, which is the compilation of many scholars that

   have spent years gathering the information that is relevant to

   this case and which addresses the relevant issues as designated

   in the parties' Trial Memorandums and in particular as set forth

   by William T. Conklin, Pages 19-34 of Exhibit 7-J.

At the calendar call, the Court gave petitioner copies of opinions in four cases to read before trial, which was set for the afternoon of the same day, to "demonstrate to you the error of your ways * * * that the position that you are taking as set forth in your trial memorandum is not going to prevail". ^{*225 of facts. Petitioner had refused to stipulate that he had not filed Federal income tax returns for the years in question or the amounts of compensation he had received. Petitioner's refusal to stipulate led to a trial on these issues, with the introduction of documentary evidence to support respondent's determinations that petitioner had not filed income tax returns and the testimony of four witnesses (petitioner's two employers and their respective received from his employers. Petitioner presented no evidence.}

At all relevant times, including the time of filing his petition, petitioner has been a resident of Jeffersonville, Indiana. Petitioner did not file Federal income tax returns for any of the taxable years 1992, 1993, or 1994. Petitioner is a skilled craftsman in the jewelry trade, doing designing, engraving, wax carving, stone setting, casting, finishing, polishing, and general repair. For his services as a jewelry craftsman, petitioner received the following amounts of compensation:

                   Payer

          ____________________________________________

          Aesthetics in          G. Metry

Year         Jewelry, Inc.          Jewelers, Inc.

1992          $ 27,940              ---

1993           29,963            $ 14,735

1994           23,708             15,544

Petitioner also received unemployment compensation of $ 105 in 1994.

During the years in question, the following amounts of Federal income

tax were withheld from petitioner's wages by Aesthetics in Jewelry,

Inc.:

         Taxable           Amounts

          Year            Withheld

          1992            $ 2,715

          1993             2,516

          1994             1,677

The amounts of tax withheld from petitioner's wages by Aesthetics in Jewelry, Inc., did not satisfy his obligations to pay estimated tax in 1993 and 1994.

At the conclusion of the testimony of respondent's witnesses, petitioner said that he wanted to submit additional briefs. The Court warned him that would mean more work for respondent and the Court, which could result in a larger penalty under section 6673 than if the Court just ruled from the bench. Petitioner replied: "I am willing to take that risk". The Court set a briefing schedule, and briefs have been filed by the parties.

Notwithstanding that this case has been submitted to the Court for decision as described above, the case at docket No. 7944-98 was disposed of, on February 18, 1999, by entry of an agreed decision that reduced the amounts of the deficiencies and additions originally determined by respondent.

DISCUSSION

Respondent's determinations in this case were based upon third-party information returns for compensation paid to petitioner. Petitioner refused to stipulate the amounts received. In the face of petitioner's refusal, respondent, out of an abundance of caution in the face of section 6201(d), proved the amounts received by the testimony and records of petitioner's former employers and their accountants. Petitioner has not disputed respondent's determination that he received unemployment compensation in 1994 from the Commonwealth of Kentucky. Respondent proffered evidence that convinces the Court that petitioner did not file income tax returns or pay any estimated tax (in addition to the tax withheld) with respect to any of the taxable years at issue.

Petitioner's brief contains outworn arguments about the unconstitutionality of the Federal income tax in its application to earned income that are refuted by numerous court opinions, including the opinions cited supra note 1, which were provided to petitioner before the trial resulting from his refusal to concede respondent's determinations. Those opinions establish that the compensation paid to petitioner during the taxable years in question is included in his gross income and is subject to Federal income tax. Petitioner's arguments are without merit, and he is liable for income tax and additions to tax as determined by respondent. No useful purpose would be served by any further explanation.

Turning to respondent's motion for a penalty under section 6673, we observe that, in each of the cases cited supra note 1, a penalty had been imposed under section 6673, which now provides for imposition of a penalty of up to $ 25,000 against a party who advances frivolous or groundless positions or institutes or maintains a proceeding primarily for delay. Petitioner has chosen to ignore the Court's precedents and admonitions and has continued to assert frivolous and groundless positions. Petitioner has wasted valuable time and imposed additional costs on respondent, the Court, and petitioner's employers and their accountants by refusing to stipulate the amounts of compensation that he received from his employers during the taxable years in question and other facts that were not reasonably in dispute, including his failures to file returns.

Petitioner apparently followed the Court's advice in settling the case at docket No. 7944-98, but he has continued to play his hopeless hand in this case, consciously choosing to risk the imposition of a penalty under section 6673.

In the face of petitioner's refusal to deal with this case on the merits, respondent has asked the Court to impose a penalty under section 6673 in the full amount permitted by law, $ 25,000. The Court agrees with respondent that a substantial penalty is appropriate, but, considering the total amount owed by petitioner, not in the full amount of $ 25,000. We will exercise our discretion under section 6673 to require petitioner to pay a penalty to the United States in the amount of $ 10,000.

An appropriate order will be issued, and decision will be entered for respondent.

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Footnotes

• 1. Coleman v. Commissioner, 791 F.2d 68">791 F.2d 68 (7th Cir. 1986); Ghalardi Income Tax Educ. Found. v. Commissioner, T.C. Memo 1998-460">T.C. Memo 1998-460; Liddane v. Commissioner, T.C. Memo 1998-259">T.C. Memo 1998-259; Talmage v. Commissioner, T.C. Memo 1996-114">T.C. Memo 1996-114, affd. without published opinion 101 F.3d 695">101 F.3d 695↩ (4th Cir. 1996). accountants) as to the amounts of compensation that he had