Greenberg v. Comm'r of Internal Revenue

• Decision Date: 07 February 1980
• Docket Number: Docket No. 9086-78.
• Citation: 73 T.C. 806
• Parties: CHARLES S. GREENBERG, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

73 T.C. 806

CHARLES S. GREENBERG, PETITIONER

v.COMMISSIONER of INTERNAL REVENUE, RESPONDENT

Docket No. 9086-78.

United States Tax Court

Filed February 7, 1980.

P filed a petition in this Court to contest the disallowance of deductions taken by him as a protest to using part of his taxes for war purposes. P had twice previously filed similar petitions and had been twice informed by this Court that such deductions were without merit. Held, the Commissioner's motion for judgment on the pleadings is granted since there is no genuine issue as to any material fact, and his determination of deficiencies and additions to tax under sec. 6653(a), I.R.C. 1954, is sustained. Held, further, on the Commissioner's motion, damages under sec. 6673, I.R.C. 1954, are awarded to the United States since P instituted these proceedings merely for delay. Charles S. Greenberg, pro se.

Russell K. Stewart, for the respondent.

OPINION

SIMPSON, Judge:

This matter is before us on the Commissioner's motion for judgment on the pleadings. The Commissioner determined deficiencies in the petitioner's Federal income taxes of $2,226.33 for 1975 and $2,980 for 1976 and additions to the tax of $106 and $149, respectively, for such years under section 6653(a) of the Internal Revenue Code of 1954.¹ A concession by the parties has reduced the deficiency for 1975, and the only substantive issues remaining for decision are: (1) Whether the petitioner may deduct the amounts claimed by him as a “Health, Education and Welfare” (HEW) deduction because of his conscientious objection to the payment of Federal income taxes to support war; and (2) whether the petitioner is liable for damages under section 6673 for instituting proceedings before this Court merely for delay.

The petitioner, Charles S. Greenberg, resided in Norristown, Pa., at the time he filed his petition herein. He filed his Federal income tax returns for 1975 and 1976 with the Internal Revenue Service, Philadelphia, Pa.

On his Federal income tax returns for 1975 and 1976, the petitioner claimed deductions of $7,090 in 1975 and $9,678 in 1976 as an HEW deduction “to reduce my legal tax to an acceptable level” as a protest to prevent a portion of his income taxes from being allocated to “the pursuit of war.” Notices of deficiency were mailed to the petitioner on May 5, 1978, wherein the Commissioner determined that such deductions were not allowable.

On August 2, 1978, the petitioner filed a petition with this Court in which he alleged:

Both deficiencies deny a deduction in protest of war which would involve me in a conflict of conscience and violate my moral and religious beliefs as a conscientious objector to war:

a. payment of taxes for war is an acceptance and affirmation of war in that it enables the pursuit of war,

b. I am exercising a parallel privilege to that accorded in the Selective Service codes of “alternative payment” rather than “alternative service” and have dedicated the war-related portion of my taxes to peaceful purposes as an “HEW deduction” to reduce my legal tax to an acceptable level,

c. the illegal tax portion that derived from the HEW deductions ($7,090.00 in 1975 and $9,678.00 in 1976) has been paid out to an escrow fund for appropriate peaceful uses,

d. that this awkward mode of refusal is dictated by existing statutes to secure a notice of deficiency with no intent to defraud, which facts were set forth in a cover letter with my 1040 for each year and,

e. that since payment of the illegal taxes would violate the Nuremburg (sic) Edicts regarding individual rights to disobey unreasonable demands against conscience, I hereby petition the Court to accept my alternative payment plan and declare the Notices of Deficiency for 1975 and 1976 void.

The Commissioner filed an answer to the petition denying such allegations and alleged that the petitioner had filed a frivolous petition for delay within the meaning of section 6673 and that a penalty of $500 should be awarded to the United States by the Court. In support of such claim, the Commissioner alleged that the petitioner filed a petition with this Court in October 1975 disputing the disallowance of an HEW deduction for the year 1973 on the grounds of his moral beliefs and general objections to war. In such petition, the petitioner made the same contentions as he makes in his petition in this case, including his general moral objections to war, his “rights” under the Nuremberg Principles, and his privilege of “alternative payment.” On September 15, 1976, this Court filed a Memorandum Opinion in Greenberg v. Commissioner, T.C. Memo. 1976-293, in which we sustained the deficiency in income tax for the taxable year 1973 as determined by the Commissioner, and stated “that religious or moral objections to policies of the Federal government do not absolve petitioner from any portion of his income tax liability, whether expressed in terms of the First Amendment, international law, or Nuremberg Principles.” (Citations omitted.) 35 T.C.M. 1308, 1309, 77 P-H Memo. T.C. par. 76,293, at p. 76-1286.

The Commissioner also alleged that in January 1977, the petitioner, as guardian for his minor son, filed a petition with this Court contesting the disallowance of an HEW deduction on his son's 1975 income tax return on the ground of the petitioner's objection to war. Docket No. 439-77. In such case, the petition was identical to the petition in his 1973 case. The Commissioner filed a motion for judgment on the pleadings, and a hearing was held on such motion on February 13, 1978. The petitioner did not attend the hearing, but he did telephone the Court to acknowledge that the sole basis of his petition was a matter of protest. On May 18, 1978, this Court entered an order and decision and an accompanying memorandum sur order in which we sustained the deficiency in income tax for 1975 as determined by the Commissioner, and stated that “This Court has held on numerous occasions that a taxpayer may not refuse to comply with the tax laws based upon the taxpayer's disagreement with the policies of the Federal government.” (Citations omitted.) The petitioner did not appeal either decision of this Court. In support of his claim for damages under section 6673, the Commissioner also alleged that despite these adverse decisions disallowing the petitioner's deductions, “petitioner, with full knowledge and understanding of the position of this court, has petitioned herein, again claiming that he is entitled to similar frivolous deductions.”

The petitioner made no reply to the Commissioner's affirmative allegations, and thereupon, the Commissioner filed a motion pursuant to the provisions of Rule 37(c), Tax Court Rules of Practice and Procedure,² to have the undenied allegations in his answer deemed admitted. The petitioner filed a response to the Commissioner's motion and denied that his petition was frivolous, but he did not deny the other allegations of the Commissioner. The petitioner stated:

Further, I deny that a repetition of my petition is or can be considered frivolous. There is no other forum for my views about war taxes than court. As I can not afford to appeal to the lower & higher courts on a given decision, I can only hope for a variant reading of the law or a small contribution to a growing base of appeals which might further a future individual or class action. Not only is such a protest anything but frivolous, but a charge against me for exercising my only avenue of protest of $500.00 damages is absurd. If and when I lose I must pay interest and penalties; why should I pay damages to exercise a right of appeal? * * * (Emphasis in original.)

The Court ordered that all the Commissioner's allegations be deemed admitted, except for his allegation that the petitioner filed this action for the purpose of delaying the collection of his income tax.

The Commissioner filed a motion for judgment on the pleadings and a memorandum in support thereof on the ground that he was entitled to judgment as a matter of law on the undisputed facts appearing in the pleadings. A hearing was held on such motion in Philadelphia, Pa. The petitioner was unable to attend such hearing due to an illness in his family; however, he filed a written statement in lieu of appearance and stated:

The issue to me is that the Selective Service allows conscientious objectors to perform alternative service while there is no provision in the IRS Codes for similar views. I would like a legally recoginezed (sic) form of alternative payment made available for those who can establish grounds of conscience for opposing war. It is for this objective that I have engaged in War Protest for so many years. * * *

As a first matter, it is a well-established principle of tax law that deductions are a matter of legislative grace and are not allowable unless Congress has specially provided for them. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). The burden of proof rests on the petitioner to establish that a determination of the Commissioner is incorrect. Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933). The petitioner presented no evidence to show that the determination of the Commissioner was erroneous, nor did he establish that any provision in the tax statutes allows for an HEW deduction. Therefore, the Commissioner's determination must be sustained on those grounds.

Furthermore, there has been a long and undeviating parade of cases in this and other courts disallowing deductions taken by taxpayers for the part of their taxes which they estimated to be attributable to military expenditures and to which they objected because of their religious, moral, and ethical objections to war and because of their claimed “rights” under various constitutional provisions, the Nuremberg Principles, international law, and numerous international agreements and treaties. Lull v. Commissioner, 602 F.2d 1166 (4th Cir. 1979), affg. per curiam T.C. Memo. 1978-74 and Herby v....