Thompson v. Comm'r of Internal Revenue
| Decision Date | 08 April 1982 |
| Docket Number | 15112-80.,Docket Nos. 15111-80 |
| Citation | 78 T.C. 558 |
| Parties | JOAN D. THOMPSON, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENTGENE E. THOMPSON, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Petitioners filed a Form 1040 for 1976 and Forms 1040A for 1977 and 1978. Each form contains petitioners' names, address, social security numbers, occupations, and signatures. On the 1976 Form 1040, petitioners entered an amount as having been withheld for Federal income taxes. On each of the forms, petitioners claimed three exemptions and designated their filing status as “Married filing joint return.” The remaining entries on the forms consist of the words “Object: Self-incrimination” or “None.” Respondent issued a separate notice of deficiency to each petitioner, in which he used the rates applicable in the case of married individuals filing separate returns. Held: The forms filed by petitioners do not constitute returns. Petitioners are not entitled to elect to file joint returns for 1976, 1977, and 1978 after having received the notices of deficiency based on rates for married individuals filing separately and having filed timely petitions with the Tax Court for those years. Sec. 6013(b)(2)(C), I.R.C. 1954. Held, further, additions to tax imposed by respondent are sustained. Gene E. Thompson, pro se.
Linda Bourquin, for the respondent.
Respondent determined deficiencies in petitioners' Federal income tax and additions to tax as follows:
+------------------------------------------------------------------------------+
¦ ¦ ¦ ¦ ¦Additions to tax ¦
+------------+---------------+------+------------+-----------------------------¦
¦Docket No. ¦Petitioner ¦Year ¦Deficiency ¦Sec. 6651(a) ¦Sec. 6653(a) ¦
+------------+---------------+------+------------+--------------+--------------¦
¦15111-80 ¦Joan D. ¦1976 ¦$546.58 ¦ ¦$27.33 ¦
¦ ¦Thompson ¦ ¦ ¦ ¦ ¦
+------------+---------------+------+------------+--------------+--------------¦
¦ ¦ ¦1977 ¦280.00 ¦$70.00 ¦14.00 ¦
+------------+---------------+------+------------+--------------+--------------¦
¦ ¦ ¦1978 ¦470.00 ¦117.50 ¦23.50 ¦
+------------+---------------+------+------------+--------------+--------------¦
¦15112-80 ¦Gene E. ¦1976 ¦617.66 ¦6.29 ¦30.88 ¦
¦ ¦Thompson ¦ ¦ ¦ ¦ ¦
+------------+---------------+------+------------+--------------+--------------¦
¦ ¦ ¦1977 ¦968.89 ¦242.22 ¦48.44 ¦
+------------+---------------+------+------------+--------------+--------------¦
¦ ¦ ¦1978 ¦1,344.66 ¦336.17 ¦67.23 ¦
+------------------------------------------------------------------------------+
The issues for decision are: (1) Whether petitioners are entitled to compute their Federal income taxes pursuant to the joint return tax rates set forth in section 1(a)1 for 1976, 1977, and 1978, and (2) whether the additions to tax determined by respondent should be sustained.
Some of the facts have been stipulated. The stipulation of facts and the exhibits attached thereto are incorporated herein by this reference.
When the petitions in these consolidated cases were filed, petitioners Joan D. Thompson (hereinafter sometimes referred to as Joan) and Gene E. Thompson (hereinafter sometimes referred to as Gene), husband and wife, resided in Pineville, La.
In 1976, Gene received income from AFCO Industries and Morace Advertising in the amounts of $9,942.38 and $899.75, respectively. Gene received income from Morace Advertising in the amounts of $8,720.11 and $10,798.28 during 1977 and 1978, respectively.
Petitioners filed a Form 1040 with attachments for 1976. On the Form 1040, petitioners listed the taxpayers as “Gene E & Joan D Thompson,” checked the filing status box for “Married filing joint return,” set forth their social security numbers, address, and occupations, entered $1,185.04 as having been withheld for Federal income taxes, and claimed three exemptions. The remaining entries on the Form 1040 consist of the words “Object: Self-incrimination” or “None.” Both petitioners dated and signed the Form 1040 under penalties of perjury. Fourteen pages of materials attached to the Form 1040 contain various constitutional and general objections to Federal income taxation.
For each of the years 1977 and 1978, petitioners filed a Form 1040A with the Internal Revenue Service Center at Austin, Tex. Both Forms 1040A contain the names, social security numbers, occupations, address, and signatures of Joan and Gene. Petitioners designated their filing status as “Married filing joint return” and claimed three exemptions on each of the Forms 1040A. The remaining entries on the Forms 1040A consist of the words “Object: Self-incrimination” or “None.” Attached to the 1977 and 1978 Forms 1040A were documents essentially identical to those appended to the 1976 Form 1040.
Of the three exemptions claimed by petitioners on each of the forms filed by them, one exemption was claimed for their daughter, Wendina.
Respondent issued separate notices of deficiency to Gene and Joan for the years in issue. In the notice of deficiency issued to Gene, he determined that Gene had unreported income of $5,421.07 for 1976, $4,360.06 for 1977, and $5,399.14 for 1978. In the notice of deficiency issued to Joan, respondent determined that she had unreported income of $5,421.06 for 1976, $4,360.05 for 1977, and $5,399.14 for 1978, one-half of the community income of Gene and Joan for each of those years. Respondent thereafter used the rates applicable in the case of married individuals filing separate returns to calculate the deficiencies in question, allowing each petitioner a standard deduction, personal exemption, and the general tax credit for 1975 and imposing a self-employment tax on all income received from Morace Advertising in calculating the deficiencies determined against Gene. Finally, respondent imposed the additions to tax under section 6651(a) and section 6653(a) as set forth at the outset of this opinion.
OPINIONPetitioners maintain that they are entitled to use the tax rates applicable to married individuals filing joint returns. Section 1(a) provides that such rates are to be used to determine the tax imposed on the taxable income of “every married individual * * * who makes a single return jointly with his spouse under section 6013.” Thus, a joint return must be filed in order for the tax rates provided by section 1(a) to be applicable. Furthermore, if taxpayers have failed to file returns, the election to make a joint return may not be made after respondent has issued a notice of deficiency to either spouse based on rates for separate returns, and the spouse to whom such notice was issued has filed a petition with this Court. Sec. 6013(b)(2)(C). See Durovic v. Commissioner, 54 T.C. 1364, 1401-1402 (1970), affd. on this issue 487 F.2d 36, 41-42 (7th Cir. 1973); Dritz v. Commissioner, 427 F.2d 1176 (5th Cir. 1970), affg. per curiam a Memorandum Opinion of this Court.
Respondent contends that the Form 1040 with attachments filed by petitioners for 1976 and the Forms 1040A with attachments filed by petitioners for 1977 and 1978 do not contain sufficient information to constitute income tax returns and, therefore, that petitioners failed to file returns for each of the years in issue. He further contends that the circumstances of petitioners are clearly covered by section 6013(b)(2)(C) and Dritz v. Commissioner, supra, and that they, therefore, are not entitled to use the rates applicable to joint returns.
Petitioners, on the other hand, maintain that the documents filed by them constitute returns. They further maintain that denying them the benefits of filing a joint return amounts to punishing them for having asserted their Fifth Amendment right against self-incrimination in the documents filed by them and has the effect of superseding such constitutional privilege. We disagree with both contentions of petitioners.
It is well settled that a Form 1040 (or Form 1040A) which fails to contain sufficient information from which respondent can compute and assess the tax liability of a particular taxpayer does not constitute “a return.” Reiff v. Commissioner, 77 T.C. 1169 (1981). To qualify as a return, the Form 1040 must “state specifically the amounts of gross income and the deductions and credits claimed.” Conforte v. Commissioner, 74 T.C. 1160, 1195 (1980), on appeal (9th Cir., Aug. 28, 1981) ( that Forms 1040 containing only the taxpayers' names, address, social security numbers, filing status, exemptions, an amount designated as taxable income, and computations of income and self-employment tax did not constitute viable returns). See Cupp v. Commissioner, 65 T.C. 68, 79 (1975), affd. 559 F.2d 1207 (3d Cir. 1977). “In our self-reporting tax system the government should not be forced to accept as a return a document which plainly is not intended to give the required information.” United States v. Moore, 627 F.2d 830, 835 (7th Cir. 1980); McCaskill v. Commissioner, 77 T.C. 689, 698-699 (1981). In the instant case, the Form 1040 filed for 1976 and the Forms 1040A filed for 1977 and 1978 did not contain the essential information from which petitioners' tax liability could be computed. Accordingly, we find that petitioners failed to file returns for 1976, 1977, and 1978.
As noted by the Fifth Circuit, to which an appeal in the present case would lie, the courts are in agreement that a “protest return” of the type filed by petitioners “cannot be justified solely under the Fifth Amendment.” United...
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