STOEWER v. COMMISSIONER

2002 T.C. Memo. 167, 83 T.C.M. 13, 2002 Tax Ct. Memo LEXIS 173
CourtUnited States Tax Court
DecidedJuly 8, 2002
DocketNo. 2674-01L
StatusUnpublished
Cited by1 cases

This text of 2002 T.C. Memo. 167 (STOEWER v. COMMISSIONER) is published on Counsel Stack Legal Research, covering United States Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STOEWER v. COMMISSIONER, 2002 T.C. Memo. 167, 83 T.C.M. 13, 2002 Tax Ct. Memo LEXIS 173 (tax 2002).

Opinion

ROGER STOEWER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
STOEWER v. COMMISSIONER
No. 2674-01L
United States Tax Court
T.C. Memo 2002-167; 2002 Tax Ct. Memo LEXIS 173; 83 T.C.M. (CCH) 13; T.C.M. (RIA) 54805;
July 8, 2002, Filed

*173 Petitioner's motion to dismiss for lack of jurisdiction denied. Respondent's motion to dismiss for lack of jurisdiction and to strike with respect to the assessed frivolous return penalty granted.

Roger Stoewer, pro se.
Wendy S. Harris, for respondent.
Pajak, John J.

PAJAK

MEMORANDUM OPINION

PAJAK, Special Trial Judge: This case is before the Court on petitioner's Motion To Dismiss For Lack Of Jurisdiction and on respondent's Motion To Dismiss For Lack Of Jurisdiction And To Strike With Respect To The Assessed Frivolous Return Penalty. Section references are to the Internal Revenue Code as amended.

At the time the Petition for Lien or Levy Action Under Section 6320(c) or 6330(d) was filed, petitioner resided in Las Vegas, Nevada.

On April 15, 1997, petitioner filed his 1996 Form 1040EZ, Income Tax Return for Single and Joint Filers With No Dependents. Petitioner's 1996 return listed his address as 5125 Gray Lane, Apartment C, Las Vegas, Nevada, 89119 (Gray Lane address). On his 1996 return, petitioner reported wages and salaries of zero. Petitioner also reported that his adjusted gross income and taxable income on his 1996 return was zero. In a two-page document attached to his 1996 return, petitioner stated in part:

   It should also be noted that*174 I had "zero" income

   according to the Supreme Court's definition of income (See Note

   #1), since in Merchants' Loan & Trust Co v. Smietanka, 255 U.S. 509 (at pages 518 & 519), 65 L. Ed. 751, 41 S. Ct. 386

   that Court

held that "The word (income) must be given the same meaning

in all of the Income Tax Acts of Congress that was given to it

in the Corporation Excise Tax Act (of 1909)." Therefore,

since I had no earnings in 1996 that would have been taxable

under the Corporation Excise Tax Act of 1909 as

"income," I can only swear to having "zero"

   income in 1996.* * *

On April 15, 1998, petitioner filed his 1997 Form 1040EZ. Petitioner's 1997 return reflected his Gray Lane address. Again, petitioner reported wages and salaries of zero on his 1997 return. Petitioner also reported that his 1997 adjusted gross income and taxable income was zero. Petitioner attached a two-page document to his 1997 return which was essentially identical to the two-page document attached to his 1996 return.

On December 4, 1998, respondent mailed to petitioner at his Gray Lane address two separate notices of deficiency related to petitioner's 1996 and 1997 taxable*175 years, respectively. In one notice of deficiency, respondent determined an income tax deficiency of $ 3,775 and an accuracy-related penalty under section 6662(a) of $ 465 with respect to petitioner's 1996 taxable year. In the other notice of deficiency, respondent determined an income tax deficiency of $ 4,069 and an accuracy-related penalty under section 6662(a) of $ 813.80 with respect to petitioner's 1997 taxable year. Each notice of deficiency stated that the deficiencies could be contested by petitioner's filing a petition with the Tax Court 90 days from the date of the notices of deficiency.

On or about January 12, 1999, petitioner sent two virtually identical letters to respondent, one for each taxable year at issue, which contested the authority of the notices of deficiency. Petitioner did not file a petition with the Tax Court with respect to the notices of deficiencies.

On May 24, 1999, respondent assessed the income tax deficiencies and accuracy-related penalties against petitioner with respect to his 1996 and 1997 taxable years.

On June 14, 1999, respondent assessed a section 6702 frivolous return penalty with respect to each of petitioner's taxable years at issue.

*176 On April 10, 2000, respondent filed a Notice of Federal Tax Lien equal to the amount of taxes and penalties assessed by respondent with respect to petitioner's 1996 and 1997 taxable years.

On April 13, 2000, respondent issued to petitioner a Notice Of Federal Tax Lien Filing And Your Right To A Hearing Under IRC 6320 with respect to petitioner's 1996 and 1997 taxable years.

On or about May 11, 2000, petitioner timely filed a Form 12153, Request For A Collection Due Process Hearing (Appeals Office hearing request), in response to the notice of lien.

On October 25, 2000, in response to petitioner's Appeals Office hearing request, an Appeals officer sent a letter to petitioner in which he provided additional information regarding the validity of the tax and penalty assessments against petitioner.

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Related

Stoewer v. Comm'r
2003 T.C. Memo. 71 (U.S. Tax Court, 2003)

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Bluebook (online)
2002 T.C. Memo. 167, 83 T.C.M. 13, 2002 Tax Ct. Memo LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoewer-v-commissioner-tax-2002.