Bowser v. Commissioner
| Decision Date | 27 October 1980 |
| Docket Number | Docket No. 6239-76. |
| Citation | 1980 TC Memo 483,41 TCM (CCH) 275 |
| Parties | Carlton Edward Bowser, Jr. v. Commissioner. |
| Court | U.S. Tax Court |
Carlton Edward Bowser, Jr., pro se, R-1, Box 18, Oakland, Md. Stephen R. Takeuchi, for the respondent.
Memorandum Findings Of Fact And Opinion
Respondent determined the following deficiencies in petitioner's Federal income taxes and additions to tax:
Addition to Tax
Year Deficiency Sec. 6653(b)1
1972 .......... $2,171.00 $1,085.50
1973 .......... 3,879.87 1,934.94
1974 .......... 3,119.25 1,559.63
In the alternative the respondent has alleged in his answer that, if the Court should decide that the petitioner is not liable for the section 6653(b) additions to tax for fraud for any of the years, then the petitioner is liable for the additions to tax for delinquency under section 6651(a) and for the additions to tax for negligence under section 6653(a) with respect to each year.
On January 4, 1978, respondent filed a motion for partial summary judgment with respect to the deficiencies for the years 1972, 1973 and 1974. On February 22, 1978, Judge Irwin of this Court granted respondent's motion by an Order which provided in pertinent part as follows:
ORDERED that so much of respondent's motion filed January 4, 1978, as pertains to the case at Docket No. 6239-76 is granted and the decision to be entered in due course in that case will determine deficiencies in income taxes to be due from petitioner for the taxable years 1972, 1973, and 1974, in the respective amounts of $2,171.00, $3,879.87 and $3,119.25. The case remains before this Court with respect to the additions to tax asserted to be due under Section 6653(b), Int. Rev. Code 1954, and will proceed to trial in due course on that issue.
Thus, the principal issue remaining for decision is whether any part of the underpayment of income tax for each of the years 1972, 1973 and 1974 was due to petitioner's fraud with intent to evade tax so as to make him liable for the section 6653(b) additions to tax or, alternatively, whether he is liable for the additions to tax under sections 6651(a) and 6653(a), respectively. Collaterally, the petitioner has questioned the jurisdiction of this Court to decide this case and has raised several constitutional and other objections.
Petitioner did not sufficiently respond to the requests for admissions previously served on him and filed with the Court by the respondent on June 1, 1977, and July 7, 1980, and therefore the facts set forth therein have been deemed established for the purposes of this case. See Rules 90 and 104(c)(1), Tax Court Rules of Practice and Procedure.
Carlton Edward Bowser, Jr. (petitioner) was a legal resident of Oakland, Maryland, when he timely filed his petition in this case on July 6, 1976.
On April 15, 1973, the petitioner signed a Form 1040 (Individual Income Tax Return) which was received by the Internal Revenue Service Center at Philadelphia. The Form 1040 is incomplete and incorrect. It contains no information with respect to income, deductions or credits. Attached to the Form 1040 are several pages under the caption "Petition and Protest" asserting various constitutional objections to the Federal income tax laws.
On April 15, 1974, the petitioner signed a Form 1040 (Individual Income Tax Return) which was subsequently received by the Internal Revenue Philadelphia Service Center. Except for reporting on line 9 of the Form 1040 wages or other compensation in the amount of $3,675, the document is incomplete and incorrect. It contains no information with respect to deductions or credits. Attached to the Form 1040 are several pages under the caption "Petition and Protest" raising certain constitutional objections to the Federal income tax laws.
On April 15, 1975, the petitioner signed a Form 1040 (Individual Income Tax Return) which was subsequently received by the Internal Revenue Philadelphia Service Center. The Form 1040 is incomplete and incorrect. It contains no information with respect to income, deductions or credits. Several places on the face of the Form 1040 appear the words "Object: Self-Incrimination." Attached to the Form 1040 are several pages under the caption "Petition and Protest" asserting various constitutional objections to the Federal income tax laws.
During the years 1972, 1973 and 1974 the petitioner was a self-employed, commissioned insurance agent. He also received rents from certain properties in those years.
Forms 1099 were issued to the petitioner in 1972, 1973 and 1974 by the J.A. Goodwin Agency and by Goodwin & Gruber Agency, Inc. Petitioner also worked as a commissioned insurance agent for the Bowser Insurance Agency during the years in issue.
Petitioner received the following insurance commissions during the years in issue which were not reported as income on the Forms 1040 he sent to the Internal Revenue Service:
Payor 1972 1973 1974
J. A. Goodwin
Agency ....... $4,439.53 $ 4,998.08 $4,033.47
Goodwin & Gruber
Agency ....... 559.84 667.23 630.00
Bowser Insurance
Agency ....... 6,616.00 11,001.00 9,081.00
During 1972, 1973 and 1974 the petitioner received gross rental income of $2,245 from the rental of a house. After allowing for rental expenses, the net profit on the rental of the house was $300 per year.
During 1972, 1973 and 1974 the petitioner rented a trailer for a net profit after rental expenses of $300 per year.
Petitioner failed to maintain, and refused to submit for examination by respondent, any books of account and records of his income producing activities for the years 1972, 1973 and 1974.
Petitioner failed to cooperate with Revenue Agent Thomas Lyden during the investigation of petitioner's Federal income tax returns for the years in issue and attempted to thwart an effective investigation of those taxable years.
Petitioner failed to report his correct taxable income for the years 1972, 1973 and 1974. He failed to pay his income tax liabilities for those years and he concealed or contrived to conceal his gross income.
1. Petitioner had the following unreported income:
Year Amount
1972 .......... $12,214.00
1973 .......... 13,591.31
1974 .......... 14,344.47
2. There are income taxes due and owing by the petitioner as follows:
Year Amount
1972 .......... $2,171.00
1973 .......... 3,879.87
1974 .......... 3,119.25
3. The underpayments of income taxes which were required to be included in petitioner's Federal income tax returns for the years 1972, 1973 and 1974 were due to the fraud of petitioner with intent to evade tax.
OpinionIn a document entitled "Petition for Redress of Grievances and Bill of Complaint" lodged with the Court on August 1, 1980, and filed at the Pittsburgh Session on September 19, 1980, the petitioner contends, as he did at the trial, that this Court lacks jurisdiction of this case. The contention is without merit. Where, as here, a taxpayer receives a notice of income tax deficiencies (the notice was mailed to petitioner on April 12, 1976) and he files a timely petition with the United States Tax Court, he gives the Tax Court exclusive jurisdiction. Section 6512(a). The mere filing of the petition in the Tax Court is enough to deprive a United States District Court of jurisdiction for years as to which the petition was filed. See United States v. Wolf 56-2 USTC ¶ 10,053, 238 F. 2d 447 (9th Cir. 1956); Brooks v. Driscoll 40-2 USTC ¶ 9648, 114 F. 2d 426 (3rd Cir. 1940). It is significant that it is the taxpayer's action in filing a valid petition in the Tax Court, under circumstances which give the Court jurisdiction, and not any action taken by the Court, that bars a subsequent suit. Elbert v. Johnson 47-2 USTC ¶ 9393, 164 F. 2d 421, 424 (2d Cir. 1947). As we said in Dorl v. Commissioner Dec. 31,284, 57 T.C. 720, 722 (1972), affd. 74-2 USTC ¶ 9826, 507 F. 2d 406 (2d Cir. 1974).
It is now a settled principle that a taxpayer may not unilaterally oust the Tax Court from jurisdiction which, once invoked, remains unimpaired until it decides the controversy. See Main-Hammond Land Trust Dec. 78,655, 17 T.C. 942, 956 (1951), affd, 53-1 USTC ¶ 9113 200 F. 2d 308 (C.A. 6, 1952); United States v. Shepard's Estate 61-2 USTC ¶ 9594, 196 F. Supp. 281, 284 (N.D.N.Y. 1961), affirmed as modified on other issues 63-2 USTC ¶ 9569 319 F. 2d 699 (C.A. 2, 1963); and Nash Miami Motors, Inc. v. Commissioner 66-1 USTC ¶ 9354, 358 F. 2d 636 (C.A. 5, 1966), Dec. 26,948(M) affirming a Memorandum Opinion of this Court.
See also Burns, Stix Friedman & Co., Inc. v. Commissioner Dec. 31,114, 57 T.C. 392 (1971); Bowser, Sr.v. Commissioner, 78-1 USTC ¶ 9102, 40 AFTR 2d 77-5531 (3d Cir. 1977). In an earlier case involving this petitioner (Carlton Edward Bowser, Jr., Dkt. No. 5544-75) with respect to the year 1971, the Court of Appeals for the Fourth Circuit said in an unpublished per curiam opinion dated October 5, 1979, affirming an Order and Decision of this Court:
On appeal Bowser attacks the constitutional authority of the Tax Court to adjudicate his tax liability. The constitutionality of the Tax Court has been explicitly sustained in a number of decisions. See, e.g., Melton v. Kurtz 78-2 USTC ¶ 9558, 575 F. 2d 547 (5th Cir. 1978); Nash Miami Motors, Inc. v. Commissioner 66-1 USTC ¶ 9354, 358 F. 2d 636 (5th Cir.), cert. denied, 385 U.S. 918 (1966); Martin v. Commissioner 66-1 USTC ¶ 9315, 358 F. 2d 63 (7th Cir.), cert. denied, 385 U.S. 920 (1966); Willmut Gas & Oil Co. v. Fly 63-2 USTC ¶ 9694, 322 F. 2d 301 (5th Cir. 1963), cert. denied, 375 U.S. 984 (1964). See also Amos v. Commissioner 66-1 USTC ¶ 9130, 360 F. 2d 358 (4th Cir. 1965). Furthermore, in 1969 Congress altered the status of the Tax Court from that...
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