Baker v. Comm'r

2001 T.C. Memo. 283, 82 T.C.M. 812, 2001 Tax Ct. Memo LEXIS 319
United States Tax Court·Decided October 12, 2001·No. No. 5596-99·Unpublished

Opinion

WILLIAM RICHARD BAKER, JR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Baker v. Comm'r
No. 5596-99
United States Tax Court
T.C. Memo 2001-283; 2001 Tax Ct. Memo LEXIS 319; 82 T.C.M. (CCH) 812; T.C.M. (RIA) 54526;
October 12, 2001, Filed

*319 Respondent's motion for partial summary judgment granted.

William Richard Baker, Jr., pro se.
Edsel Ford Holman, Jr., for respondent.
Ruwe, Robert P.

RUWE

MEMORANDUM OPINION

RUWE, JUDGE: This matter is before this*320 Court on respondent's motion for partial summary judgment, which was filed pursuant to Rule 121. 1 The issues for decision are whether petitioner's net earnings from his law practice are subject to self- employment taxes and whether payment of those taxes is voluntary. At the time the petition in this case was filed, petitioner resided in Knoxville, Tennessee.

Petitioner did not file timely a Form 1040, U.S. Individual Income Tax Return, for taxable years 1995 and 1996. On December 22, 1998, respondent issued a notice of deficiency in which he determined the following deficiencies and additions to tax:

Additions To Tax
YearDeficiencySec. 6651(a)(1)Sec. 6654
1995$ 68,735$ 17,183.75$ 3,727.01
199612,2453,061.25651.74

Some of the deficiencies were attributable*321 to petitioner's failure to report or otherwise pay self-employment taxes.

On March 23, 1999, petitioner filed a timely petition to this Court. On July 7, 2000, petitioner executed Federal income tax returns for taxable years 1995 and 1996. On the Schedules C, Profit or Loss from Business, attached to those returns, petitioner reported net income of $ 116,814 for taxable year 1995 and $ 41,111 for taxable year 1996. The Schedules C showed that the income was derived from Mr. Baker's business or profession as an "Attorney". On the Schedules SE, Self-Employment Tax, petitioner calculated his self-employment tax liability to be $ 10,717 for taxable year 1995 and $ 5,809 for taxable year 1996.

On July 11, 2000, respondent issued interrogatories to petitioner in which he asked: "In your petition to the Tax Court you indicate that the respondent's self-employment tax computation is erroneous. Please describe in detail why the respondent's self- employment tax computation is incorrect and what you believe the correct self-employment computation to be." Petitioner replied: "See tax returns -- Respondent asserts also that self-employment taxes are voluntary and Respondent does not volunteer*322 SE taxes for 95 or 96."

Respondent contends that the self-employment tax is not voluntary and that petitioner is liable for self-employment tax on the net earnings from his law practice as reported on petitioner's belatedly filed 1995 and 1996 Federal income tax returns.

Under Rule 121(a), either party may move for summary judgment upon all or part of the legal issues in controversy. A motion for partial summary judgment will be granted where there is no genuine issue as to any material fact relevant to the particular issue involved. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The burden is on the moving party, respondent, to prove the nonexistence of a genuine issue as to any material fact and that he is entitled to judgment as a matter of law. FPL Group, Inc. & Subs. v. Commissioner, 116 T.C. 73, 74-75 (2001). In all cases, the evidence must be viewed in the light most favorable to the nonmoving*323 party, petitioner. Blanton v. Commissioner, 94 T.C. 491, 494 (1990).

Petitioner has failed to respond to respondent's motion for partial summary judgment and this Court's order dated August 24, 2001, which states: "That petitioner shall, on or before September 24, 2001, file a response to the above motion for partial summary judgment." When a motion for summary judgment is made, the nonmoving party cannot rely upon t

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