Green v. United States, 593 F.Supp. 1341 (N.D. Ind. 1984)
United States District Court,
N.D. Indiana,
Hammond Division.
Doren W. GREEN, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. L 83-100.
Oct. 5, 1984.
MEMORANDUM AND ORDER
ALLEN SHARP, Chief Judge.
The plaintiff taxpayer filed a complaint for
refund under 28 U.S.C. § 1340 and 26 U.S.C. § 7402(a) on September 13,
1983. The plaintiff filed motion for summary judgment on December
9, 1983 and a pretrial conference was held in open court on April 6,
1984. Defendant filed motion for summary judgment on February 22,
1984. Said motions are now ripe for ruling.
This case involves a $500 civil penalty
assessed against the plaintiff in accordance with Section 6702 of the Internal
Revenue Code of 1954 (26 U.S.C.), which was added to the Code by Section 326(a)
of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub.Law No.
97-248. The
plaintiff filed what purports to be a federal income tax return for the year
1982, on which he crossed out a portion of the printed jurat above his
signature. The Internal Revenue Service determined that this
purported tax return could not be processed and that it constituted a
"frivolous" purported return within the meaning of Section
6702. Accordingly, the Section 6702 penalty was assessed.
The plaintiff has paid at least 15 percent of the assessed penalty and is
therefore entitled to challenge the assessment of the penalty in this Court
pursuant to the provisions of Section 6703 of the Code, Appendix, infra.
Jurisdiction is provided by 28 U.S.C. Section 1346(a)(1).
There is no dispute as to the facts here.
The
plaintiff's purported 1982 federal income tax return consists of an IRS Form
1040 with various schedules, a W-2 wage statement, and two 1099 forms
indicating interest and dividends paid to the plaintiff. A portion
of the jurat above the plaintiff's signature on page 2 of the 1040 Form is
crossed out. The crossed out portion states that the signature is
provided "under penalties of perjury." The purported
return could not be processed by the IRS because the plaintiff, by crossing out
the portion of the printed jurat on the return above his signature, failed to
sign the return under penalties of perjury as required by law.
The
IRS assessed a frivolous return penalty in the amount of $500 against the
plaintiff under Code Section 6702.
The plaintiff has paid the assessed penalty and filed a claim for refund, which
the IRS denied. The plaintiff then filed this suit.
The complaint requests this Court to order a
refund of the plaintiff's $500 penalty payment on the grounds that the
plaintiff did not file a frivolous tax return within the meaning of Section
6702.
In an attempt to deter the filing of
frivolous tax returns, Congress in 1982 added Section 6702 to the Internal
Revenue Code of 1954, providing for a $500 penalty against persons who file
such returns or purported returns. The legislative history of TEFRA
reveals that Section 6702 is designed to deter taxpayers from filing returns or
purported returns which contain insufficient information for determining the
correctness of the taxpayer's self-assessment of tax, or which contain
information which on its face indicates that the amount of tax shown on the
return is substantially incorrect. See S.Rep. No. 494, 97th Cong.,
2d Sess. 277, U.S.Code Cong. & Admin.News 1982, p. 781. Section 6702
provides:
SEC. 6702. FRIVOLOUS INCOME TAX RETURN.
(a) Civil Penalty.--If--
(1) any individual files what
purports to be a return of the tax imposed by subtitle A but which--
(A) does not contain
information on which the substantial correctness of the self-assessment may be
judged, or
(B)
contains information that on its face indicates that the self-assessment is
substantially incorrect; and
(2) the conduct referred to in
paragraph (1) is due to--
(A) a position which is
frivolous, or
(B) a desire (which appears on
the purported return) to delay or impede the administration of Federal income
tax laws,
then such individual shall pay
a penalty of $500.
(b) Penalty in Addition to
Other Penalties.--The penalty imposed by subsection (a) shall be in
addition to any other penalty provided by law.
The Senate Report, at pages 277-278, U.S.Code Cong. & Admin.News 1982, at page 1024, provides four examples of instances in which the Section 6702 penalty applies. First, the penalty may be assessed when a purported return appears to be an IRS Form 1040, but contains "altered or incorrect descriptions of line items or other provisions." Second, the penalty applies with respect to a return or purported return in which "many or all of the line items are not filled in, except for spurious constitutional objections." Third, a return or purported return which contains insufficient information by which to calculate the tax, or contains inconsistent information, or otherwise reveals a frivolous position or a desire to impede the tax laws is subject to the penalty. Finally, the Section 6702 penalty can "be imposed against any individual filing a 'return' showing an incorrect tax due, or a reduced tax due, because of the individual's claim of a clearly unallowable deduction."
This case involves the type of purported tax
returns discussed in the Senate Report's first and third examples quoted
above. The plaintiff's purported 1982 return is a return which
contains altered provisions, which contains insufficient information by which
to judge the substantial correctness of the plaintiff's self-assessment, and
which otherwise reveals a frivolous position and a desire to impede the
administration of the tax laws.
By crossing out a portion of the jurat above
his signature on the purported return, the plaintiff failed to certify that the
entries on the form were correct. Without this certification, the
IRS could not determine the substantial correctness of the self-assessment on
the purported return and, indeed, could not even process the purported
return. There is no doubt that a federal income tax return must be
signed under penalties of perjury. Nor is there doubt that a
taxpayer is prohibited from altering any portion of a jurat on a return.
Sections 6061 and 6065 of the Code provide in pertinent part:
SEC. 6061. SIGNING OF RETURNS AND OTHER DOCUMENTS.
* * * any return, statement,
or other document required to be made under any provision of the internal
revenue laws or regulations shall be signed in accordance with forms or
regulations prescribed by the Secretary.
SEC.
6065. VERIFICATION OF RETURNS.
* * * any return, declaration,
statement, or other document required to be made under any provision of the
internal revenue laws or regulations shall contain or be verified by a written
declaration that it is made under the penalties of perjury.
A return not signed under penalties of perjury does not contain sufficient information by which to calculate the taxpayer's tax liability or by which to judge the substantial correctness of the self-assessment. Under the Internal Revenue Code, tax liability can only be calculated based upon properly verified information. Moreover, by altering the jurat in violation of Code Sections 6061 and 6065, the plaintiff asserted that a return does not have to be filed under penalties of perjury, a position which is legally frivolous. An income tax return which is not signed under penalties of perjury is invalid and cannot be processed by the IRS. Cupp v. Commissioner, 65 T.C. 68, 78-79 (1975); affirmed by unpublished order (10th Cir. January 20, 1978). See also, Lucas v. Pilliod Lumber Co., 281 U.S. 245, 50 S.Ct. 297, 74 L.Ed. 829 (1930)
The plaintiff's purported 1982 income tax
return fits within the Section 6702 definition of a frivolous income tax
return. Thus the Section 6702 penalty was properly assessed against
the plaintiff.
The plaintiff's motion for summary judgment
is DENIED. The defendant's motion for summary judgment is
GRANTED. Costs assessed against plaintiff.