Beard v. Comm'r

*766 This case is before us on respondent's motion for summary judgment. ¹ Pursuant to Rule 121, ² a response to the motion was filed by petitioner on February 13, 1984 (the response). On February 22, 1984, the motion for summary judgment was heard. Respondent was represented by counsel but there was no appearance by or on behalf of petitioner. The motion was taken*71 under advisement.

In the notice of deficiency issued to petitioner, respondent determined a deficiency in petitioner's 1981 Federal income tax in the amount of $ 6,535. In the answer, respondent alleged *767 that additions to tax were due under section 6651(a)(1) for failure to file a return, and section 6653(a) for negligence or intentional disregard of the rules and regulations. Additionally, damages pursuant to section 6673 for instituting proceedings before the Tax Court merely for delay were requested.

The petition alleged as errors in the notice of deficiency that petitioner's wages are not*72 taxable income and were wrongfully included in his gross income. He claims that his receipts are a product of the exchange of labor for wages. Since the fair market value of the labor transferred is equivalent to the amount of wages received, there is no excess gain to be reported as taxable income. ³ The "equal exchange" theory was also set forth in a memorandum signed by petitioner and submitted to the Internal Revenue Service as part of the purported "return" for the 1981 year. A copy of the memorandum was attached to his petition.

In his reply, petitioner alleges "the petition contains specific justiciable errors of law and/or fact in relation to the recognition by the Respondent of the Petitioner's*73 'labor' to be 'property.'" ⁴ Petitioner asserts that he has arrived at his conclusions by lengthy study and research of the rules and regulations. He contends that no additions to tax are due under sections 6653(a) and 6651(a)(1). Petitioner denies he was required to file a 1981 income tax return on or before April 15, 1982, in that he owed no tax liability for that year. He admits that the document in question in this case is the only submission he made to the Internal Revenue Service for the 1981 year, claiming that it is a return under section 6012 because it contains figures and numbers from which to compute a tax. Furthermore, he requests a trial by jury on all issues raised by the pleadings and alleges respondent has the burden of proof on all issues. Finally, he denies he has begun this proceeding before this Court merely for the purpose of delay.

*74 *768 We must first decide whether any genuine issue of material fact exists to prevent our summary adjudication of the legal issues in controversy. Rule 121. If summary judgment is warranted, we must decide whether (1) petitioner or respondent has the burden of proof as to the issues raised in the pleadings; (2) the wages earned by petitioner are taxable; (3) petitioner is entitled to a trial by jury; (4) the purported "return" filed by petitioner was a return for the purposes of sections 6011, 6012, 6072, and 6651(a)(1); (5) the failure to include these wages in taxable income was due to negligence or intentional disregard of the rules and regulations for section 6653(a) purposes; and (6) under section 6673, an award of damages for instituting a proceeding before this Court merely for the purpose of delay is merited.

Certain facts are not disputed by the parties. Pursuant to Rule 121, respondent filed an affidavit with exhibits in connection with the instant motion. ⁵ Petitioner did not file any affidavits or exhibits. The undisputed documents supplied by respondent and the undisputed facts in the pleadings constitute the facts used for the purposes of this motion. Rule*75 121(c).

FINDINGS OF FACT

Petitioner resided in Carleton, Mich., when the petition was filed in this case. During the 1981 taxable year, petitioner was employed by, and received wages from, Guardian Industries totaling $ 24,401.89. Such amounts were actually received by petitioner during that year. ⁶

*76 He submitted to the Internal Revenue Service the below-described form and an accompanying memorandum dated February 22, 1982, as his 1981 return, thus indicating his protest to the Federal income tax laws. No other document alleged to be a return for the 1981 year was submitted. ⁷ This *769 document (the tampered form) was prepared by, or for, petitioner by making changes to an official Treasury Form 1040 in such fashion (by printing or typing) that the changes may not be readily apparent to a casual reader. ⁸

In that part of the first page of the official form intended to reflect income, petitioner deleted the word "income" from the item captions in lines 8a, 11, 18, and 20, and inserted in those spaces the word "gain." On line 21 of the form, he obliterated the word "income" from*77 the item caption. In addition, in the margin caption to this section, petitioner deleted the word "Income" and inserted the word "Receipts."

In that part of the first page of the form intended to reflect deductions from income, he deleted the words "Employee business expense (attach Form 2106)" from line 23 of the form and inserted "Non-taxable receipts." In addition, in the marginal caption to this section, petitioner deleted the word "Income" and inserted the word "Receipts," so that the caption reads "Adjustments to Receipts" instead of "Adjustments to Income."

Petitioner filled in his name, address, Social Security number, occupation, and filing status in addition to the name, occupation, and Social Security number of his spouse. He claimed one exemption on the tampered form. The relevant information entries are as follows: On line 7 entitled "Wages, salaries, tips, etc.," taxpayer inserted the amount of $ 24,401.89. On line 23, under the category of "Non-taxable receipts," petitioner claimed an adjustment to "Receipts" of $ 24,401.89. He therefore showed a tax liability of zero. On line 55, entitled "Total Federal income tax withheld," he showed an amount of $ 1,770.75. *78 The total $ 1,770.75 that had been withheld from his wages was claimed as a refund. This tampered form was signed by petitioner and dated February 22, 1982. Petitioner's Form W-2 issued by Guardian Industries was attached.

Petitioner's scheme in submitting this tampered form apparently was to conceal from the Service Center operators the fact that his inclusion of his wages on the tampered form was negated by his fabrication of "Non-taxable receipts" on line 23, thus simultaneously excluding the wages theoretically reported. *770 The net effect of the two steps was to create a zero tax liability. Since his employer had withheld against the amounts paid to him for the 1981 year, this scheme allowed him to claim a refund for that year.

Petitioner has not always protested against his duty to pay taxes. For taxable year 1979 petitioner and his spouse, cash basis, calendar year taxpayers, reported jointly on an official Treasury Form 1040A, wages they received as taxable income, and showed the appropriate tax on such income. Their taxes withheld exceeded their tax liability and they were due a small refund. The Treasury Form 1040A was fully completed and correctly reflected*79 the wages shown on the Forms W-2 they received.

Petitioner has studied court cases, statutes, rules, and regulations pertaining to income tax. He recognizes that this Court has, on numerous occasions, categorized the "equal exchange" theory that wages are not subject to income tax, as frivolous and utterly without merit. ⁹

The instant case is one of 23 cases that were on the March 5, 1984, trial calendar for Detroit, Mich., in which tampered forms are at issue. ¹⁰ Many other similar cases are pending before this Court. All of these 23 cases contain a fabricated adjustment for "Non-taxable receipts." All were submitted to the Internal Revenue Service in the year 1980 ¹¹*81 or 1981. ¹² All but 2 of the 23 were submitted with two- or three-page memorandums advocating that wages are not taxable income. Twenty-two of the petitions in these cases contained identical language except for entries relevant to the petitioners' personal *771 *80 data. The remaining case contained a handwritten, individually composed petition. In cases in which replies or responses to respondent's motion for summary judgment were filed, all but one were the same format and language, with minor deviations to suit the petitioners in each case. It is abundantly clear that these docketed cases and documents represent a coordinated protest effort -- an attempt to obtain refunds where employers had withheld against amounts paid, as well as to drain further the limited resources of this Court with these frivolous contentions.

The Internal Revenue Service has been forced to develop special procedures ¹³ to handle tampered forms like those in the group referred to above. The tampered forms are also referred to as "Eisner v. Macomber returns" because Eisner v. Macomber, 252 U.S. 189 (1920), is usually cited either in the form or in the literature attached. ¹⁴ From a cursory look, they appear to be official Forms 1040, but upon closer inspection, definitively are not. Internal Revenue Service employees must identify and then withdraw these from the normal processing channels, and gather *82 and deliver them to a special team for review. After such review, the person who submitted such a tampered return is often, but not always, informed that it is not acceptable as a return because it does not comply with the Internal Revenue Code. Petitioner was so informed by a letter dated July 16, 1982, stating that the tampered form was "not *772 acceptable as an income tax return because it does not contain information required by law, and it does not comply with Internal Revenue Code requirements."

*83 ULTIMATE FINDINGS OF FACT

Petitioner actually received $ 24,401.89 from his employer as wages during the 1981 taxable year. The only documents he submitted for the 1981 taxable year were the tampered form and its accompanying memorandum. Petitioner has extensively studied the rules and regulations regarding the income tax laws in addition to income tax cases and, thus, his actions were the product of informed deliberation.

OPINION

The threshold issue is whether a motion for summary judgment is appropriate in this case. We conclude that it is. Rule 121 provides that a party may move for summary judgment upon all or any part of the legal issues in controversy "if the pleadings * * * and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law." Rule 121(b). The summary judgment procedure is available even though there is a dispute under the pleadings if it is shown through materials in the record outside the pleadings that no genuine issue of material fact exists. ¹⁵ In passing upon such a motion, the factual materials presented*84 "must be viewed in the light most favorable to the party opposing the motion." Jacklin v. Commissioner, 79 T.C. 340, 344 (1982); Elkins v. Commissioner, 81 T.C. 669 (1983).

Since respondent is the movant with respect to this motion, he has the burden of proving there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law. There is no dispute among the parties as a factual matter that petitioner received his Form W-2 from his *773 employer reflecting the $ 24,401.89 amount. The only justiciable error that petitioner alleges in his reply and response is that such amounts are not taxable, a legal issue. Petitioner does not question and thereby concedes*85 to the authenticity of the respondent's evidence attached as exhibits to a submitted affidavit, ¹⁶ i.e.: the 1979 tax return and the tampered form at issue. He admits in his reply that this is the only form filed for the 1981 taxable year. That petitioner is familiar with the Federal income tax statutes, regulations, and case law is confirmed by the frequent citation of the Federal income tax cases, statutes, rules, and regulations in the documents filed by petitioner in this Court. The summary judgment pleadings, affidavits, and exhibits establish that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.

The burden of proof is upon the petitioner with respect to the deficiency set forth in the statutory notice and upon the respondent as to the issues raised in the answer. Welch v. Helvering, 290 U.S. 111 (1933); Nicholson v. Commissioner, 32 B.T.A. 977 (1935), affd. 90 F.2d 978 (8th Cir. 1937);*86 Rule 142 (a).

We first dispose of petitioner's two frivolous contentions. Respondent maintains that the amounts petitioner received for services performed as reflected in the 1981 Form W-2 are taxable as gross income to petitioner for the year in which he received such amounts. There is no doubt that such amounts are taxable as gross income. Sec. 61; Eisner v. Macomber, supra at 207; Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955); Rowlee v. Commissioner, 80 T.C. 1111 (1983).

Petitioner received wages for the taxable year of $ 24,401.89, and thus was required to file a Federal income tax return for that year. Sec. 6012 (a)(1)(A). Section 6072 provides that in the case of returns under section 6012, returns made on the basis of the calendar year shall be filed on or before the 15th day of April following the close of the calendar year. It is clear that petitioner had a duty to file a return. The crucial issue is whether respondent must accept this tampered form in satisfaction of that duty.

*774 Petitioner, in his reply, asserts that he is entitled*87 to a trial by jury for all issues contained in this case. It is well settled that in a suit concerning Federal tax liability, no right to a jury trial exists under the Seventh Amendment guaranteeing a jury trial on common law actions. Cupp v. Commissioner, 65 T.C. 68 (1975), affd. without published opinion 559 F.2d 1207 (3d Cir. 1977). Thus, we find taxpayer is not entitled to a jury trial.

Respondent alleges an addition to tax under section 6651 (a)(1) for failure to file a Federal income tax return for taxable year 1981. Section 6651 (a)(1) provides for an addition to tax if a taxpayer fails to file a timely return unless such failure is due to reasonable cause and not due to willful neglect. Respondent maintains that the tampered form submitted by petitioner was not a return within the meaning of sections 6012, 6072, and 6651 (a)(1), that it will not be accepted as such (and was not accepted in this case), and thus petitioner is liable for an addition under section 6651 (a)(1). We agree.

The general requirements of a Federal income tax return are set forth in section 6011 (a), in relevant part as*88 follows:

When required by regulations prescribed by the Secretary any person made liable for any tax * * * shall make a return or statement according to the forms and regulations prescribed by the Secretary. [Emphasis added.]

Regulations implementing this legislative mandate provide:

(a) General rule. Every person subject to any tax, or required to collect any tax, under subtitle A of the Code, shall make such returns or statements as are required by the regulations in this chapter. The return or statement shall include therein the information required by the applicable regulations or forms. ¹⁷

(b) Use of prescribed forms. Copies of the prescribed return forms will so far as possible be furnished taxpayers by district directors. A taxpayer will not be excused from making a return, however, by the fact that no return form has been furnished to him. Taxpayers not supplied with the proper forms should make application therefor to the district director in ample time to have their returns prepared, verified, and filed on or before the due date with the internal revenue office where such returns are required to be filed. *775 Each taxpayer should carefully*89 prepare his return and set forth fully and clearly the information required to be included therein. Returns which have not been so prepared will not be accepted as meeting the requirements of the code. * * * ¹⁸

The statutory grant of authority to the Treasury requires that taxpayers make a return or statement according to the forms and regulations prescribed by the Secretary of the Treasury. These regulations mandate the use of the proper official form, except as noted below. ¹⁹ The U.S. Supreme Court in the case of Commissioner v. Lane-Wells Co., 321 U.S. 219 (1944), has recognized this mandate in stating:

Congress has given discretion to the Commissioner to prescribe by regulation forms of returns and has made it the duty of the taxpayer to comply. It thus implements the system of self assessment which is so largely the basis of our American scheme of income taxation. The purpose is not alone to get tax information in some form but also to get it with such uniformity, completeness, and arrangement that the physical task of handling and verifying returns may be readily accomplished. [321 U.S. at 223; emphasis*90 added.]

This discretionary authority outlined in the regulations at section 1.6011-1, Income Tax Regs., has also been recognized in the case of Parker v. Commissioner, 365 F.2d 792 (8th Cir. 1966). Although the facts of that case are distinguishable from the*91 instant case, the court did note that --

Taxpayers are required to file timely returns on forms established by the Commissioner. * * * The Commissioner is certainly not required to accept any facsimile the taxpayer sees fit to submit. If the Commissioner were obligated to do so, the business of tax collecting would result in insurmountable confusion. * * * [365 F.2d at 800.]

For years, the only permissible exception to the use of the official form has been the permission, granted from time to time to tax return preparers by the Internal Revenue Service, to reproduce and vary very slightly the official form pursuant to the Commissioner's revenue procedures. These revenue *776 procedures require advance approval of a specially designed form prior to use as well as following the guidelines for acceptable changes in the form. The philosophy of the revenue procedure is and has been required forms to conform in material respects to the official form for the obvious reasons of convenience and processing facilitation but also to be clearly distinguishable from the official form, thereby removing the opportunity for deceit. Portions of the revenue procedure*92 in effect and applicable to the facts of this case are printed in the appendix hereto at pages 782-783.

On the tampered form, various margin and item captions, in whole or in part, have been deleted and most replaced with language fabricated by the petitioner. These changes were not in conformity with the Revenue Procedure ²⁰ rules at section 5.01(2)(a)(1) requiring each substitute or privately designed form to follow the design of the official form as to format, arrangement, item caption, line numbers, line references, and sequence. Also, Revenue Procedure section 3.04(1) and (2) prohibits any change of any Internal Revenue Service tax form, graphic or otherwise, or the use of a taxpayer's own (nonapproved) version without prior approval from the Internal Revenue Service. Petitioner made no attempt to obtain such approval. Additionally, petitioner was required by Revenue Procedure section 6.01 to remove the Government Printing Office symbol and jacket numbers, and in such space (using the same type size), print the employer identifying number of the printer or the Social Security number of the form designer. Petitioner did not remove the symbol and numbers and did not insert*93 in their place his appropriate number. The tampered form deceptively bore the markings of an official form. Section 8.01, Revenue Procedure rules, prohibits the filing of reproductions of official forms and substitute forms that do not meet the requirements of the procedure. The only filing made by petitioner for the 1981 taxable year was the nonconforming tampered form.

Petitioner's prohibited tampering with the official form, the net effect of which is the creation of a zero tax liability, adversely affects the form's useability by respondent. The tampered form, because of these numerous irregularities, *777 must be handled by special procedures and must be withdrawn from normal processing channels. There can be no doubt that due to its lack of conformity to the official form, it substantially impedes the Commissioner's*94 physical task of handling and verifying tax returns. Under the facts of this case, taxpayer has not made a return according to the forms and regulations prescribed by the Secretary as required by section 6011(a). The rejection of the tampered form was authorized by the regulations for failure to conform to the revenue procedure. But whether or not rejected in this case, the question remains -- Is the Internal Revenue Service nevertheless required to accept and treat as a tax return this tampered form? We conclude that it is not.

There have been factual circumstances in which the courts have treated as returns, for statute of limitations purposes, documents which did not conform to the regulations as prescribed by section 6011(a). Since the instant case is one of first impression, we will consider these cases that were decided on the statute of limitations issue because a return that is sufficient to trigger the running of the statute of limitation must also be sufficient for the purpose of section 6651(a)(1).

The Supreme Court test to determine whether a document is sufficient for statute of limitations purposes has several elements: First, there must be sufficient data to*95 calculate tax liability; second, the document must purport to be a return; third, there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and fourth, the taxpayer must execute the return under penalties of perjury.

It is important to consider the factual circumstances under which this test has been applied. In Florsheim Bros. Drygoods Co. v. United States, 280 U.S. 453 (1930), at issue was whether the filing of a "tentative return" or the later filing of a "completed return" triggered the statute of limitations. A corporation had filed a tentative return along with a request for an extension of time to file a return which was later filed. The Court found that the filing of the tentative return was not in the nature of a "list," "schedule," or "return" required by tax statutes. It was designed to meet a peculiar exigency and "Its purpose was to secure to the taxpayer a needed extension of time for filing the required return, without defeating the Government's right to prompt payment of the first installment *778 [of tax]." The statute plainly manifested a purpose that the period of limitations was to commence*96 only when the taxpayer supplied the required information in the prescribed manner -- the completed return.

The Court recognized that the filing of a return that is defective or incomplete may under some circumstances be sufficient to start the running of the period of limitation. However, such a return must purport to be a specific statement of the items of income, deductions, and credits in compliance with the statutory duty to report information and "to have that effect it must honestly and reasonably be intended as such." (Emphasis added.) Thus, the filing of the tentative return was not a return to start the period of limitation running.

This issue of whether the document was a return for the statute of limitation purposes was again before the Court in Zellerbach Paper Co. v. Helvering, 293 U.S. 172 (1934). Justice Cardozo, speaking for the Court, said:

Perfect accuracy or completeness is not necessary to rescue a return from nullity, if it purports to be a return, is sworn to as such * * * and evinces an honest and genuine endeavor to satisfy the law. This is so even though at the time of filing the omissions or inaccuracies are such*97 as to make amendment necessary. [Zellerbach Paper Co. v. Helvering, supra at 180. Citations omitted.]

The most recent Supreme Court reaffirmation of the test articulated in Florsheim and Zellerbach is found in Badaracco, Sr. v. Commissioner, 464 U.S.    (1984). The issue was whether the filing of a nonfraudulent amended return following a fraudulent original return started the running of the statute of limitations. One of the taxpayers' arguments was that their original return, to the extent it was fraudulent, was a nullity for purposes of the statute of limitations, relying upon Zellerbach. The Supreme Court noted that the Badaracco returns "purported to be returns, were sworn to as such and appeared on their faces to constitute endeavors to satisfy the law." Although fraudulent, these returns were not nullities under the Zellerbach test.

The tampered form before us may purport to be a return in that it may "convey, imply or profess outwardly" to be a return. Black's Law Dictionary 1112 (rev. 5th ed. 1979) It was also sworn to. But it does not reflect an endeavor to satisfy the *779 law. It in fact makes a mockery