DIRKES v. COMMISSIONER

Dale I. Dirkes, pro se.

Frederick W. Krieg, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial Judge Daniel J. Dinan pursuant to the provisions of section 7443A(b)(5) and Rules 180, 181, and 183. ¹ The Court agrees with and adopts the opinion of the Special Trial Judge, which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

DINAN, Special Trial Judge: This matter is before the Court on respondent's Motion for Summary Judgment, filed*63 pursuant to Rule 121(a). Petitioner filed an objection to the motion.

             Background

On April 7, 1998, respondent sent a notice of deficiency to petitioner determining a deficiency in his Federal income tax for 1994 of $ 23,543, and additions to tax pursuant to section 6651(a)(1) and section 6654(a) of $ 3,498.50 and $ 671.13, respectively. Respondent determined that petitioner failed to timely file his Federal income tax return for 1994, failed to pay estimated taxes, and failed to report the following amounts includable in his income:

   Capital gains    $ 60,628

   Wages         37,323

Respondent also determined that petitioner was entitled to a standard deduction of $ 3,175 and an exemption of $ 1,862.

Petitioner timely filed his petition with the Court on July 6, 1998, in which he alleged, in pertinent part:

   4. The determination of the tax set forth in said notice of

   deficiency is based upon the following errors:

     A. The Commissioner has erroneously alleged that the

     petitioner received thirty-seven thousand, three hundred

     and twentythree*64 dollars, ($ 37,323), in wages.

     B. The Commissioner has erroneously alleged that the

     petitioner received a capital gain of sixty thousand, six

     hundred and twenty-eight dollars, ($ 60,628).

           *   *   *   *   *   *   *

     D. The Commissioner has erroneously alleged that the

     petitioner owes a delinquency penalty of three thousand,

     four hundred ninety-eight dollars and fifty cents,

     ($ 3,498.50), pursuant to Internal Revenue Code Sec. 6651(a)(1).

     E. The Commissioner has erroneously alleged that petitioner

     owes a penalty of six hundred seventy-one dollars and

     thirteen cents, ($ 671.13), for failure to file quarterly

     estimates pursuant to Internal Revenue Code Sec. 6654.

Further, petitioner alleges:

   5. The facts upon which petitioner relies, as the basis of the

   petitioner's case, are as follows:

     A. To the best of petitioner's information, knowledge, and

     belief, the petitioner's*65 total income was less than twenty

     thousand dollars, ($ 20,000). This compensation consisted of

     approximately eleven, (11), days of regular wages with the

     remaining compensation deriving from the exercise of

     Incentive Stock Option(s). Petitioner is without

     documentation sufficient to produce a more detailed

     analysis of said compensation.

           *   *   *   *   *   *   *

     C. The petitioner's failure to file federal income tax

     returns in a timely manner is not due to or

     resultant from willful neglect.

     D. The petitioner's failure to file federal income tax

     returns in a timely manner is due to and resultant

     from reasonable cause.

In his Motion for Summary Judgment, respondent, for the purpose of this motion, concedes the capital gain adjustment of the statutory notice of deficiency. Thus, this adjustment is no longer at issue.

The notice of deficiency allowed petitioner a standard deduction of $ 3,175 based on "married filing separate" status. Respondent*66 concedes that petitioner should be allowed a standard deduction of $ 3,800 based upon "single" filing status. This adjustment is not at issue.

For the purpose of this motion, respondent concedes the sections 6651(a)(1) and 6654(a) additions to tax. Thus, these adjustments are no longer at issue.

Before respondent filed the motion for summary judgment, petitioner filed a reply to respondent's answer to the petition in which he avers:

   2. On or about September 29, 1998, Petitioner received his W2

   forms for the first time from his previous employer, MCI

   Communications Corporation * * *. Those W2's indicate that

   Petitioner's total income for the calendar year 1994 was thirty-

   seven thousand, three hundred twenty-three dollars and eleven

   cents, ($ 37,323.11). This income includes all Incentive Stock

   Options, (ICO's), exercised in calendar year 1994.

The notice of deficiency included in petitioner's income wages of $ 37,323 for 1994. Pursuant to petitioner's admission in paragraph 2 of his reply to respondent's answer, he is deemed to have conceded that amount. Thus, these wages are no longer in issue.

      *67        Discussion

Summary judgment is appropriate "if the pleadings, answers to interrogatories, depositions, admissions, 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); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. See Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988); Espinoza v. Commissioner, 78 T.C. 412, 415-416 (1982). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences will be made in a manner most favorable to the party opposing summary judgment. See Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985).

As previously stated, the issues framed by the pleadings in this case are: (1) Whether petitioner failed to report capital gain of $ 60,628; (2) whether he failed to report*68 wages of $ 37,323; (3) whether he is allowed an exemption of $ 1,862; (4) whether he is allowed a standard deduction of $ 3,175; (5) whether he is liable for an addition to tax pursuant to section 6651(a)(1) of $ 3,498.50; and (6) whether he is liable for an addition to tax pursuant to section 6654(a) of $ 671.13.

For the purpose of this motion, respondent concedes the capital gain adjustment of $ 60,628, and petitioner admits having received wages of $ 37,323 from MCI for 1994.

Based on decreased adjusted gross income resulting from respondent's concessions, respondent concedes that petitioner is entitled to an exemption in the amount of $ 2,450. This adjustment is not at issue.

Respondent concedes that petitioner is entitled to a standard deduction of $ 3,800 based upon "single" filing status. This adjustment is not at issue.

Respondent concedes that petitioner is not liable for additions to tax pursuant to sections 6651(a)(1) and 6654(a).

             Conclusion

For the reasons stated herein, we find and hold that there is no genuine issue as to any material fact remaining for litigation in this case and that a decision may be rendered as a matter*69 of law.

To reflect the foregoing,

An order granting respondent's motion for summary judgment will be issued, and decision will be entered pursuant to Rule 155.