Is Cupp v. Commissioner still good law?

Opinion · United States Tax Court

Cupp v. Commissioner

65 T.C. 68

Type: Opinion
Court: United States Tax Court
Jurisdiction: Federal
Date: 1975-10-14
Topic: general

How later courts describe this case

it is well settled that the seventh amendment does not secure a right to a jury trial in Tax Court
right to petition the government for a redress of grievances and other constitutional rights not violated
First , Fourth , Sixth , Seventh , and Sixteenth Amendments
" where a taxpayer takes advantage of the procedure of filing a petition in the Tax Court without payment of the tax, any deprivation of a jury trial is due to his own act"
redress of grievances; due process
due process rights not violated

Citator

UpLaw has not yet analyzed Cupp v. Commissioner. The absence of a flag is not a finding that it is good law.

Authority status: pending
Cited by: 376 opinions

CUPP v. COMMISSIONER OF INTERNAL REVENUE,65 T.C. 68(1975)

EDWARD A. CUPP, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 4828-73.

United States Tax Court.

Filed October 14, 1975.

Held:1. A page 1 of a Form 1040, U.S. Individual Income Tax Return, which contained no figures as to income and deductions and had deleted above petitioner's signature the words "under penalties of perjury" did not constitute a Federal income taxPage 69return for the year 1969, and similar documents did not constitute Federal income tax returns for the years 1970 and 1971; no reasonable cause for failure to file having been shown, the additions to tax for failure to file returns for each of these years are sustained as are the additions to tax for negligence or intentional disregard of rules and regulations.

2. Petitioner failed to show error in the deficiencies as determined by respondent or that the method used by respondent was unreasonable or was in violation of petitioner's rights under thefirst,fourth, orfifthamendments of the Constitution of the United States.

3. The Federal income tax is not unconstitutional because of taxing amounts received by petitioner in forms other than gold or silver coins.

4. Petitioner's rights under thesixthamendment of the Constitution of the United States were not violated by refusal of the Court to permit him to be represented in the trial of this case by an individual not admitted to practice before the United States Tax Court or any court.

5. Petitioner is not entitled to a jury trial before the United States Tax Court and his rights were not prejudiced when at his request the Judge before whom the trial was held refused to recuse herself.

Edward A. Cupp, pro se.Joseph M. Abele,for the respondent.

SCOTT,Judge:

Respondent determined deficiencies in petitioner's Federal income taxes and additions to taxes for the years and in the amounts as follows:

ADDITIONS TO TAXYear Deficiency Sec. 6651(a) Sec. 6653(a) Total

1969 ......... $8,928.10 $2,232.03 $596.41 $11,756.54 1970 ......... 14,347.28 3,586.82 717.36 18,651.46 1971 ......... 15,474.84 3,868.71 773.74 20,117.20¹

The issues for decision are:

(1) Whether petitioner filed Federal income tax returns for the calendar years 1969, 1970, and 1971 and, if not, whether his failure to file such returns was due to reasonable cause because of his claim of protection against self-incrimination under thefifthamendment of the Constitution of the United States;Page 70

(2) Whether any part of petitioner's underpayment of tax, if any, is due to negligence or intentional disregard of rules and regulations;

(3) Whether respondent's determination of petitioner's taxable income and income tax deficiencies is in violation of petitioner's rights under thefirst,fourth, orfifthamendments of the Constitution of the United States and, if not, has petitioner shown error in the deficiencies in tax as determined by respondent;

(4) Whether the Federal income tax is unconstitutional because of taxing amounts received by a petitioner in forms other than gold and silver coins;

(5) Whether petitioner's rights under thesixthamendment of the Constitution of the United States were violated when a person who was not admitted to practice before the United States Tax Court and not an attorney admitted to practice in any State or the District of Columbia was not permitted to represent him in a trial before this Court; and

(6) Whether petitioner was entitled to a jury trial and whether his rights were prejudiced when at his request the Judge before whom the trial was held refused to recuse herself.

FINDINGS OF FACT

Petitioner resided in Hopwood, Pa., at the time of the filing of his petition in this case. During the calendar years 1969 through 1971 petitioner was a practicing chiropractor with his office located in Friendsville, Md. Petitioner had been practicing as a chiropractor since the year 1965.

For the calendar year 1968 petitioner filed a joint income tax return with Lois J. Cupp on Form 1040, U.S. Individual Income Tax Return, reporting on Schedule C attached thereto gross receipts from his business as a chiropractor in the amount of $31,822.72 and a net profit from this activity of $23,575.48. Petitioner itemized his personal deductions on this income tax return and claimed as exemptions, in addition to himself and his wife, three children. After subtracting from his adjusted gross income the amount of his itemized deductions and $3,000 of exemptions, petitioner showed an amount of $18,986.48 on which he computed his income tax due for the year.

For the calendar year 1969 petitioner filed an application for extension of time for filing his Federal income tax return, whichPage 71was dated May 14, 1970. Under date of May 17, 1970, the requested extension was denied on the ground that it had been determined that the extension was not warranted and petitioner was allowed 10 days from the date of the notice disallowing the application for extension within which to file his return. Petitioner submitted page 1 of Form 1040, U.S. Individual Income Tax Return, which he signed under date of May 28, 1970, and which was stamped "received" by the District Director of Internal Revenue, Pittsburgh, Pa., on June 1, 1970, which contained no information except his name, address, social security number; that his occupation was a chiropractor; and reference to an attached letter. There was deleted from the line above petitioner's signature the words "under penalties of perjury." The letter attached to this return stated that petitioner was filing his "income tax report in this fashion" because (1) arbitrary interpretation of his tax information by Internal Revenue Service representatives constitutes possible self-incrimination; (2) the tedious work necessary to furnish the information constitutes involuntary servitude; (3) funds raised by income taxes are being used to subsidize Communist revolution and treason throughout the world against his religion; (4) he did not have a minimum of $600 in lawful money backed by silver and gold during the past year and under the Constitution only money backed by silver and gold is legal tender; and (5) the income tax is in violation of the 14th amendment of the Constitution of the United States since the tax is unequal between the wealthy and low and the middle-income recipients.

For the calendar year 1970 petitioner submitted to the Internal Revenue Service a document which consisted of part of page 1 of a Form 1040, U.S. Individual Income Tax Return, which contained his name, address, social security number, and occupation, and recitations of reasons for furnishing no further information, substantially the same in substance as those given in the letter attached to the document he submitted for the year 1969. Attached to this document as "Exhibit A" were copies of the "First Coinage Act of April 7, 1792," excerpts from the United States Constitution and excerpts from the Constitution of the State of Minnesota, various excerpts from Federal statutes, Supreme Court opinions and legal dissertations, as well as what appears to be an excerpt from a court proceeding of February 11,Page 721970, and certain documents prepared by Jerome Daly. Other miscellaneous items included in the attached "Exhibit A" were documents represented to be copies of a communication "On the Constitutionality of the Bank of the United States, 1791 —JeffersontoWashington," and "Veto of the Bank Renewal Bill — Andrew Jackson, 1832," and documents stated to be opinions of a justice of the peace of the State of Minnesota. On page 4 of the document the following appeared:

The money of account of the United States as expressed in Dollars or Units, disnes or tenths, cents or hundreths, and mills or thousandths, as coined by Congress with Congress fixing the Standard of weights and measures thereof for the year in question are as follows:

Gold eagles, units or dollars ........ No.

__ $ _____

Silver dollars ....................... No.

__ $ _____

Silver half dollars .................. No.

10?

$5.00?

Silver quarters ...................... No.

10?

$2.50?

Silver half dimes .................... No.

__ $ _____

Nickles .............................. No.

__ $ _____

Pennies or cents ..................... No.

__ $ _____

Silver dimes ......................... No.

__ $ _____

Total Income As Expressed In Monies of Account of the U.S. ........$7.50?

[Reproduced literally.]

On page 10 of the document, without any statement with respect to penalties of prejury or declaration of correctness or completeness, petitioner's signature appeared as did the date April 15, 1971. Beneath petitioner's signature appeared the following:

TO THE DISTRICT DIRECTOR OF INTERNAL REVENUE

Sir:

Please answer the questions raised in the foregoing return fully in writing by return mail. If you or any of your agents have any further questions please write.

Thanking you in advance for your kind cooperation I remain,

Very truly yours, (S) Edward A. Cupp Dated, April 15, 1971Page 73

The document submitted by petitioner bears the stamp "Received April 16, 1971, MASC" (Mid-Atlantic Service Center, Internal Revenue Service).

For the year 1971 petitioner submitted to the Internal Revenue Service the first page of a 1971 Form 1040, U.S. Individual Income Tax return, signed under date of April 17, 1972, with the words "under penalties of perjury" scratched out above the signature. This page of the Form 1040 showed petitioner's name, social security number, his occupation as a chiropractor, and stated under "Wages, salaries, tips, etc.," $60, and under "Adjusted gross income," $60. On page 5 of an attachment to page 1 of the Form 1040, the following appeared in explanation of this item:

The money of Account of the United States as expressed in Dollars or Units, dimes or tenths, cents or hundredths, and mills or thousandths, as coined by Act of Congress with the standard of the weights and measures of the precious metals, gold and silver therein fixed by act of Congress received by the undersigned for the year in question are as follows:

Gold eagles, units or dollars ..... No. ___ $ _____

Silver dollars .................... No. ___ $ _____

Silver half dollars ............... No. _

10.00

Silver quarters ................... No.

160

40.00

Silver half dimes ................. No. ___ $ _____

Nickles ........................... No. ___ $ _____

Pennies or cents .................. No. ___ $ _____

Silver dimes ...................... No.

100

10.00

Total Income as Expressed in Monies of Account of the U.S. ......

$60.00

[Reproduced literally.]

Under the words "Wages, salaries, tips, etc." on page 1 of the Form 1040 appeared the following: "(Note) See 11 pages and 'Daly Eagle' of May 1, 1971 attached." Attached to page 1 of the Form 1040 were 71 pages of written material and copies of documents which were substantially the same as the copies of documents submitted with page 1 of the Form 1040 for the year 1970. On page 11 petitioner's signature appeared without any statement with respect to "under penalties of perjury," and below this signature substantially the same statement similarly addressed was made as that addressed to the District Director ofPage 74Internal Revenue which appeared on the document submitted by petitioner for 1970.

On April 21, 1971, a revenue officer of the Office of the District Director of Internal Revenue, Pittsburgh, Pa., contacted petitioner by telephone requesting petitioner to file an income tax return for the calendar year 1969. Thereafter, this revenue officer referred petitioner's case to the Internal Revenue Service Audit Division with the statement that he was unable to get petitioner to file an income tax return for the taxable year 1969. On April 13, 1972, an Internal Revenue Service special agent delivered a letter dated April 12, 1972, from the Acting District Director, Internal Revenue Service, to petitioner. This letter advised petitioner that the documents he had sent the Internal Revenue Service for the taxable years 1969 and 1970 did not constitute income tax returns and, if he had filed a similar document for the taxable year 1971, that also would not constitute an income tax return. Attached to this letter was a Form 1040 with Schedules A, B, C, D, E, and R, along with the instructions for use in preparing a 1971 Federal income tax return. When the special agent delivered the letter from the Acting District Director of Internal Revenue to petitioner he returned to petitioner the documents which petitioner had filed consisting of pages 1 of Form 1040 with the attachments for the years 1969 and 1970. In July 1972 the document which petitioner had filed consisting of page 1 of a Form 1040 for 1971, with attachments, was sent to petitioner by certified mail with a transmittal letter containing similar statements with respect to the document not constituting a return to those contained in the letter of April 12, 1972, delivered by the special agent to petitioner. Petitioner returned the documents consisting of pages 1 of Form 1040, with attachments, for the years 1969, 1970, and 1971 to the Internal Revenue Service with a transmittal letter dated February 14, 1973, which read as follows:

Dear Sirs:

In reply to your letter of January 22, 1973. Please be advised that the income tax return you claim you are unable to find for 1969 was returned to me at my home by one of your agents, Special Agent Thomas M. Plasko of your Intelligence Division. He also returned my 1970 return at that time. I later received by certified mail (certified #126653) my 1971 return from you as being not to your liking.Page 75

I am herein enclosing all three returns to you. I trust this will be satisfactory to you. If it is not, I trust you will follow due process of law to adjudicate this matter.

Sincerely, (S) Edward A. Cupp EDWARD A. CUPP

When a special agent of the Internal Revenue Service contacted petitioner on May 12, 1972, with a request to see his books and records petitioner refused to supply any documents, claiming protection under thefifthamendment of the Constitution of the United States. The special agent then contacted various banks and ascertained that petitioner maintained accounts in certain of these banks during the years 1969, 1970, and 1971 and obtained copies of the banks' records with respect to petitioner's accounts. He also obtained records with respect to loans which had been made to petitioner during these years and records of repayments of these loans. This special agent also contacted businesses from which purchases of supplies and equipment were made by petitioner during the years 1969, 1970, and 1971 and obtained copies of their records with respect to petitioner's purchases. During the years 1969, 1970, and 1971 petitioner made payments on loans with small checks of third parties. He made payments for supplies and equipment he purchased with checks and with money orders. During the years 1969, 1970, and 1971 petitioner furnished the total support of three children, two of whom were college students.

Respondent's special agent closed his investigation of petitioner's income taxes for the years 1969, 1970, and 1971 in July 1972. The Intelligence Division of the District Director's office did not recommend that a criminal proceeding be instituted against petitioner with respect to these taxable years. The information obtained by the special agent was turned over to an internal revenue agent at the time the special agent's investigation was closed.

Under date of November 10, 1972, the District Director of Internal Revenue, Pittsburgh, Pa., sent a "30-day" letter to petitioner stating that there was enclosed a copy of "our examination report" explaining adjustments of petitioner's tax liability. In this letter petitioner was informed that if he did not agree with findings in the report he could request a conference with a member of the conference staff. The letter furtherPage 76informed petitioner that if he did not reply thereto within 30 days the Internal Revenue Service would proceed to process the case on the basis of the information in the report. The report attached to the 30-day letter set forth a computation of petitioner's income for the years 1969, 1970, and 1971 based on total bank deposits less deposits of loan proceeds, plus estimated cash receipts less computed business expense deductions, to arrive at an amount of adjusted gross income from which was subtracted the standard deduction for a married person filing separately and one personal exemption.

Petitioner requested and was granted a district conference. This conference was held in February 1973, but petitioner did not make any of his books or records available at this district conference. Under date of April 5, 1973, respondent sent petitioner a statutory notice of deficiency determining deficiencies and additions to tax as we have set forth heretofore. In the explanation attached to this notice of deficiency respondent shows the computation of petitioner's taxable income for the years 1969, 1970, and 1971 as follows:

1969 19701971

Bank deposits: First National Bank of Confluence ................ $35,641.92 $29,853.90 $4,726.54 First National Bank of Oakland, Md. .............. 13.00 0 0 ----------- ----------- ----------- Total deposits ............. 35,654.92 29,853.90 4,726.54 Less: loan proceeds deposited .................... (12,200.00) (2,000.00) (0) ----------- ----------- ----------- Net deposits ..................... 23,454.92 27,853.90 4,726.54 Cash ............................. 13,451.52 16,280.96 48,058.75 ----------- ----------- ----------- Gross receipts ................... 36,906.44 44,134.86 52,785.29 Less: Computed business deductions ..................... (7,307.48) (8,738.70) (10,451.49) ----------- ----------- ----------- Net profit and adjusted gross income ................... 29,598.96 35,396.16 42,333.80

The cash included in this computation for 1969 and 1970 was based on the annual living costs of a four-person family in the Pittsburgh area for the years 1969 and 1970, respectively, as set forth in statistics published by the Bureau of Labor Statistics of the Department of Labor. For 1971 the cash figure was based on a computed increase in gross receipts in 1971 over 1970Page 77comparable to the computed increase of 1970 over 1969. Petitioner's business expenses were computed for each of the years 1969, 1970, and 1971 as the same percentage of gross receipts for the year as petitioner's 1968 business expenses, as reported adjusted for nonrecurring items, were to reported 1968 gross receipts.

Respondent in his notice of deficiency explained his adjustments as being his determination of petitioner's income under section 61(a), I.R.C. 1954,¹with allowance of business expense deductions, a standard deduction, and one personal exemption, and explained the additions to tax as being made under section 6651(a) for failure to file timely returns or to show reasonable cause for such failure and as being made under section 6653(a) because of the determination that part of the underpayment for each of the taxable years 1969, 1970, and 1971 was due to negligence or intentional disregard of rules and regulations.

OPINION

Petitioner takes the position that the documents he filed containing the first page of a Form 1040 constitute proper returns for each of the calendar years 1969, 1970, and 1971. While petitioner's position is not completely clear, apparently he is contending (1) that these documents are proper returns since they constitute his petition for redress of grievances in accordance with the rights guaranteed to him under thefirstamendment of the Constitution of the United States and that not to accept these documents as returns is in violation of his rights under that amendment to the Constitution, and (2) that to require him "to place monetary figures on Federal returns" violates his rights against self-incrimination under thefifthamendment of the Constitution of the United States. Although in his brief petitioner does not stress the point, he is apparently still contending as he did at the trial that the only legal tender under the United States Constitution is gold and silver coins and therefore, the documents he filed for the years 1969, 1970, and 1971 were adequate returns since he reported thereon the amounts he received in silver coins and the fact that he received no gold coins. Petitioner in support of this contention isPage 78apparently relying on the provisions of articleI, section10, of the United States Constitution which provides that "No State shall * * * make any Thing but gold and silver Coin a Tender in Payment of Debts."

Petitioner also argues (1) that his rights under thefourthamendment were violated by respondent's investigation of his tax liability for the years 1969, 1970, and 1971; (2) that his rights under thefifthamendment were also violated by this investigation in that the investigation did not comply with "due process of law"; (3) that his rights under thesixthamendment were violated in that he was denied counsel of his choosing either before the Internal Revenue Service conferee or before this Court; and (4) that respondent's determination is invalid because of the failure of respondent's representatives to answer his claim for redress of grievances. However, we view petitioner's contentions in these respects to go to his claim of invalidity of respondent's determination and not to his contention that his returns are valid.

Petitioner in his brief does not separately discuss the validity of respondent's determination of additions to tax under section 6651(a) for failure to timely file his returns and section 6653(a) for negligence and disregard of rules and regulations. We gather that petitioner contests these additions to tax only if we sustain his contention that he has in fact filed adequate Federal income tax returns for the years 1969, 1970, and 1971. The record is clear that, unless the documents he filed for 1969, 1970, and 1971 which we have described in our findings of fact are considered to be income tax returns for those years, he has filed no returns for those years as required by statute. It is equally clear from the facts in this record that, if petitioner is required to file income tax returns in substantial compliance with respondent's regulations, he has willfully refused to do so.

In our view petitioner has filed no income tax returns for the calendar years 1969, 1970, and 1971. In the first place the documents which petitioner filed were not signed under penalties of perjury and, as we pointed out inPeter Vaira,52 T.C. 986,1005(1969), revd. on other grounds444 F.2d 770(3d Cir. 1971), in order for a Form 1040 to constitute a valid income tax return it must be signed by the taxpayer under penalties of perjury. In theVairacase we called attention to the fact that the Supreme Court inLucas v. Pilliod Lumber Co.,281 U.S. 245Page 79(1930), and this Court inTheodore R. Plunkett,41 B.T.A. 700,710-711(1940), affd.118 F.2d 644(1st Cir. 1941), had held that a return form unsupported by oath could not constitute a valid return. We then concluded that the change in the law removing the oath requirement and substituting instead a verification subject to penalties of perjury was merely a change to avoid inconvenience to taxpayers and did not intend to change the result reached by the Supreme Court inLucas v.Pilliod Lumber Co., supra. We therefore conclude that since petitioner did not sign the documents which he claims to be returns for the years 1969, 1970, and 1971 under penalties of perjury they do not constitute valid returns.

However, it is equally clear that in order for a document to constitute a tax return of a taxpayer, it must contain sufficient data from which respondent can compute and assess his liability with respect to a particular tax.Commissioner v. Lane-Wells Co.,321 U.S. 219(1944);MarkoDurovic,54 T.C. 1364,1387-1388(1970), affd. on this issue and revd. and remanded in part on other issues487 F.2d 36(7th Cir. 1973). Petitioner in this case disclosed no data on the documents he filed from which respondent could compute and assess his liability with respect to his income taxes for the calendar years 1969, 1970, and 1971. As we pointed out inJohnH. Houston,38 T.C. 486,491-492(1962), showing only a name, address, social security number, and date on a document falls far short of the information necessary to be shown on a return to enable respondent to compute and assess a tax. See alsoLouis Richard Hosking,62 T.C. 635,639(1974), citing the cases above discussed.

InLouis Richard Hosking, supraat 639, we stated that the law is well settled that the requirement that taxpayers file tax returns in accordance with the provisions of the Internal Revenue Code and respondent's regulations does not violate a taxpayer's privilege against self-incrimination under thefifthamendment.United States v. Sullivan,274 U.S. 259(1927). A similar conclusion has been reached in cases involving criminal prosecution of taxpayers for willful failure to file Federal income tax returns. InUnited States v. Daly,481 F.2d 28(8th Cir. 1973), the court upheld the defendant's conviction under section 7203 for willful failure to file Federal income tax returns. In that case the documents which had been submitted by the defendant to the Internal Revenue Service for the years for which he wasPage 80convicted of a willful failure to file returns were substantially the same as the documents petitioner in the instant case submitted for the years 1969, 1970, and 1971. In theDalycase,supra,the court concluded that the documents filed by the defendant were not income tax returns and relying on statements inUnited States v. Porth,426 F.2d 519(10th Cir. 1970), held defendant's contention that the requirement that he put figures on his tax return violated his rights under thefifthamendment without merit. The court pointed out that defendant's position of blanket refusal to answer any questions on the return relating to his income or expenses was unjustified even if a particular question might be incriminating. The court quoted fromUnited States v. Sullivan,supra,to the effect that if the return called for answers that the defendant was privileged from making he might raise an objection in the return to giving those answers but could not on that account in effect refuse to make any return at all. The court also quoted a statement from the decision inHeligman v.United States,407 F.2d 448, 450, 452 (8th Cir. 1969), cert. denied395 U.S. 977(1969), to the effect that a taxpayer is not the final arbiter of thefifthamendment privilege but that such privilege could be asserted only with respect to a particular question and that it is up to the court then to determine whether the privilege is applicable, and —

The public need for requiring voluntary disclosures of income transcends any personal right to thwart national objectives by allowing an undisclosed self-determination of possible incrimination, thus excusing compliance with the income tax laws. We, therefore, hold that theFifthAmendment privilege against incrimination does not extend to defendant's failure to file * * *

See alsoKasey v. United States,457 F.2d 369,370(9th Cir. 1972), affg.54 T.C. 1642(1970);E. Jan Roberts,62 T.C. 834,838(1974).²

Also inUnited States v. Daly, supra,the court disposed of a contention similar to that made by petitioner in this case that the only "Legal Tender Dollars" are those made of gold and silver, with the statement that "This contention is clearly frivolous." See alsoKoll v. Wayzata State Bank,397 F.2d 124Page 81(8th Cir. 1968). We likewise consider this contention frivolous. As respondent points out in his brief, the provision of articleI, section10, of the United States Constitution does not relate to the Federal Government but merely provides that "No State shall * * * make any Thing but gold and silver Coin a Tender in Payment of Debts." The fact that the provision of the Constitution which petitioner quotes applies only to States and not to the Federal Government is in itself sufficient to dispose of petitioner's "Legal Tender Dollars" contention. InCupp v. The Secretary of Treasury, et al.,³an unreported case (W.D.Pa. 1973, 34 AFTR 2d 74-5302, 74-2 USTC par. 9610), the court dismissed the plaintiff's action which attempted to establish the unconstitutionality of the graduated income tax and that he received no dollar income because the dollars he received were not gold or silver and this decision was affirmed by the Court of Appeals for the Third Circuit, 493 F.2d 1400 (1974). See alsoHartman v. Switzer,376 F. Supp. 486,490(W.D.Pa. 1974), and cases there cited for the proposition that "The claim that legal tender is only gold and silver and the money system of the United States is unconstitutional is clearly spurious." We therefore conclude that petitioner filed no returns for the calendar years 1969, 1970, and 1971 and has shown no reasonable cause for failure to file. The record clearly shows willfulness by petitioner in refusing to comply with rules and regulations in filing proper returns. We sustain the additions to tax determined by respondent under sections 6651(a) and 6653(a).Martin A.Glowinski,25 T.C. 934(1956), affd. per curiam243 F.2d 635(D.C. Cir. 1957);Parker v. Commissioner,365 F.2d 792(8th Cir. 1966), affg. in part, revg. in part, and remanding a Memorandum Opinion of this Court;George I. Fullerton,22 T.C. 372,379-380(1954).

Petitioner also contends that respondent's determination of tax is invalid because in obtaining petitioner's bank statements and other information with respect to his financial situation from third parties respondent violated the provisions of thefourthamendment of the Constitution against illegal searches and seizures and the provisions of thefifthamendment in that petitioner was not afforded due process in being present when respondent made the investigation and in being granted a judicial hearing before respondent made his determination. PetitionerPage 82apparently also contends in this respect that his rights under thefirstamendment were violated in that his returns were not treated by respondent as petitions for redress of grievances.

We find no merit to any of these contentions of petitioner. The record clearly shows that respondent obtained the information from various banks and other sources as to petitioner's receipts and expenditures after petitioner refused to furnish respondent with his books and records or any information with respect to his income and expenses. Respondent made no search or seizure of petitioner's records or of the records of the banks in which petitioner maintained accounts or persons from whom he made purchases. The record shows that the banks and other persons from whom respondent obtained information voluntarily complied with respondent's request for information which was contained in their records of transactions with petitioner, not petitioner's records in their possession. Since respondent made no search or seizure of petitioner's records, no rights of petitioner under thefourthamendment have been violated. SeeDonaldson v. United States,400 U.S. 517,522(1971), and cases there cited;United Statesv. Continental Bank Trust Co.,503 F.2d 45(10th Cir. 1974). The law is well settled that respondent is entitled to use other reasonable methods of determining a taxpayer's income where the taxpayer either has inadequate records or does not make his books and records available for audit.Holland v.United States,348 U.S. 121(1954);Joseph F. Giddio,54 T.C. 1530(1970);Harry Gordon,63 T.C. 51,78(1974). At the trial of this case petitioner was informed by the Court that, if he produced no evidence to show error in respondent's determination, the tax as set forth in the notice of deficiency would be approved unless, as he contended, the deficiency notice was held invalid or respondent's method of computation shown to be arbitrary. Petitioner produced no evidence and in fact refused to answer questions when the Court attempted to solicit information from him respecting his income and expenses. Where a taxpayer refuses to produce "evidence solely within his possession which, if true, would be favorable to him" the presumption arises that "if produced it would be unfavorable."W. A. Shaw,27 T.C. 561,573(1956), affd.252 F.2d 681(6th Cir. 1958). Petitioner was afforded every opportunity both in the investigation and in a district conference to show a proper computation of his taxable income or any errorPage 83in respondent's proposed computation. Petitioner refused to make any such showing. Clearly there was no violation of the "due process" clause of thefifthamendment by respondent. The providing of a conference before the Appellate Division of the Internal Revenue Service is not essential to the validity of a notice of deficiency.Anthony R. Cataldo,60 T.C. 522(1973), affd. per curiam499 F.2d 550(2d Cir. 1974). Petitioner also contends that his returns were intended as petitions seeking redress of grievances and that he was entitled to have respondent's computation of his tax liability rejected because he has received no reply to his petition for redress of grievances. InAbraham J. Muste,35 T.C. 913(1961), we rejected a contention of a taxpayer that he was entitled to have respondent's computation rejected because he in good faith, based on religious beliefs, did not agree with it, pointing out that requiring the taxpayer to be subjected to the taxing statute was not a restriction on his free exercise of religion in violation of thefirstamendment. InUnited Statesv. Malinowski,472 F.2d 850,857(3d Cir. 1973), the court stated with respect to a claim by a taxpayer that a Form W-4 filed by him claiming 13 dependency exemptions when he knew that he was legally entitled to only 2 such exemptions was a petition for redress of grievances under thefirstamendment of the Constitution as follows:

Moreover, we are not at all certain that appellant's argument here is more than a restatement in constitutional terms of his previously asserted "good faith" defense, which we have rejected. If accepted here, there would be no bounds to the operation of this defense. To urge that violating a federal law which has a direct or indirect bearing on the object of the protest is conduct protected by theFirstAmendment is to endorse a concept having no precedent in any form of organized society where standards of societal conduct are promulgated by some authority.

Prescinding from issues replete with emotional overtones, such as the Vietnam War, could appellant seriously assert aFirstAmendment defense to a prosecution under similar circumstances if the object of his protest centered on the use of limousines by Cabinet officers, or a grant of federal funds to inner-city schools? Could appellant utilize this technique if he were protesting the use of federal funds to support cancer research on the St. Joseph's College campus?

Thus posited, appellant'sFirstAmendment argument is but a suggestion that a member of society can be absolved of the responsibility for obeying a given law of the community, state, or nation if he can prove a sincere, abiding, and good faith objection to the direct or indirect object of that law. Such a position represents a feeble effort to emasculate basic principles of civil disobedience, and, simply stated, is invalid. Here, the actor wants the best of both worlds; to disobey, yet to be absolved of punishment for disobedience. A similar contentionPage 84was rejected inMoylan,* * * [United States v. Moylan,417 F.2d 1002(4th Cir. 1969)].

We consider petitioner'sfirstamendment argument here to be likewise invalid. To accept petitioner's argument here would result in any person who wished to use part of an income tax form to file a document stating he was seeking redress from grievances avoiding payment of taxes on his income. The cases cited by petitioner dealing with such rights as printing of documents by a newspaper and labor unions or other organizations furnishing information as to certain rights to members are clearly distinguishable on their facts from the instant case.

The determination of petitioner's income tax liability for 1969, 1970, and 1971 is reasonable under the circumstances of this case. SeeArthur Figueiredo,54 T.C. 1508(1970), affd. in an unpublished order (9th Cir. 1973). We therefore sustain this determination except that petitioner is entitled to three dependency exemptions for his three children in each year, as respondent concedes in his brief. Petitioner has totally failed to prove that respondent otherwise erred in his determination of the deficiencies in tax and additions to tax as set forth in the notice of deficiency.

Even though petitioner makes a separate argument that the Federal income tax is unconstitutional because of taxing amounts received by petitioner in forms other than gold and silver coins we have, in concluding that petitioner was not justified in refusing to report other than gold and silver coins on an income tax form, in effect disposed of this argument. The constitutionality of the income tax was early upheld by the Supreme Court;Brushaber v. Union Pacific R.R.Co.,240 U.S. 1(1916). An argument similar to petitioner's in this case was disposed of inUnited States v. Porth, supra(426 F.2d at 523). The court in that case pointed out that while the defense of unconstitutionality of the income tax grows out of the defendant's longtime dislike for the tax and money system of the United States, the claim was insubstantial and without merit. The court quoted language fromPorth v. Brodrick,214 F.2d 925,926(10th Cir. 1954), referring to such allegation as "farfetched and frivolous." This same description is appropriate as to petitioner's argument that the United States Tax Court cannot pass on the constitutionality of a statute imposing an income tax. SeeDavid B. Barr,51 T.C. 693(1969).Page 85

Petitioner's final arguments deal with his dislike of the Court's refusing to allow a person not admitted to practice before this Court and not an attorney admitted to practice before any court, State or Federal, to represent him as counsel; the fact that he was not granted a jury trial; and the denial of his request that the Judge before whom the trial was scheduled recuse herself since he had recently filed a suit naming her, together with all of the Judges of the United States Tax Court and their spouses, substantially all of the United States District Court Judges, and substantially all of the Judges of the United States Circuit Courts of Appeals, as well as numerous other persons, as defendants.

Rule 24 of the Rules of Practice and Procedure of this Court provides that counsel may enter an appearance either by subscribing to the petition or other initial pleading or by filing a separate entry of appearance. Subparagraph (4) of paragraph (a) provides as follows:

(4)Counsel Not Admitted to Practice:No entry of appearance by counsel not admitted to practice before this Court will be effective until he shall have been admitted, but he may be recognized as counsel in a pending case to the extent permitted by the Court and then only where it appears that he can and will be promptly admitted. For the procedure for admission to practice before the Court, see Rule 200.

Paragraph (b) of Rule 24 provides for personal representation without counsel. Petitioner in a document entitled "Notice Under Rule 91" specifically stated that "counsel of his choosing" was "a person not licensed by any Court." So that the record would be clear the Court specifically asked whether the person petitioner referred to as "counsel of his choosing" was admitted to practice before the United States Tax Court and the reply was that he was not.

The requirement that only qualified persons are permitted to represent litigants before this Court is for the protection of litigants by insuring that only persons able to properly represent a party appear for him. Petitioner in this case was afforded full opportunity to be heard and to represent himself at the trial.⁴Petitioner's reliance on thesixthamendment of the Constitution of the United States is totally misplaced. Thesixthamendment of the United States Constitution deals with criminalPage 86prosecution and is not applicable to a civil proceeding. Petitioner here was afforded full opportunity to be heard and therefore we conclude that no rights of his were violated at the trial because a person not properly qualified to represent him before this Court was not permitted to act as his attorney during the trial.

Petitioner's contention that he is entitled to a jury trial before the United States Tax Court is likewise without merit. InOlshausen v. Commissioner,273 F.2d 23,27(9th Cir. 1959), the court pointed out that where a taxpayer takes advantage of the procedure of filing a petition in the Tax Court without payment of the tax, any deprivation of a jury trial is due to his own act. If a taxpayer desires a jury trial, he must pay the tax and sue for refund thereof. It is well settled that in a suit concerning Federal tax liability, no right to a jury trial exists under theseventhamendment to the Constitution guaranteeing a jury trial in common law actions. See alsoHartman v. Switzer,376 F. Supp. 486,489-490(W.D.Pa. 1974), and cases there cited.

In reply to petitioner's contention that the trial Judge erred in not recusing herself, the statement made by Judge Willson inCupp v. Levi, et al.,___ F. Supp. ___ (W.D.Pa. 1975, 36 AFTR 2d 75-5690, 75-2 USTC par. 9670), is equally applicable here.⁵In that case Judge Willson, in explaining his denial of the plaintiff's motion that he recuse himself, stated:

Plaintiff asserts that because I am a defendant inAdams, etal. v. Burger, et al.,Civil Action No. 75-56, andBrobeck, etal. v. Levi, et al.,Civil Action No. 75-589, actions filed in this district in which plaintiff here is a co-plaintiff, my impartiality is subject to question. The motion is frivolous since every federal judge in this District, and virtually all federal judges throughout the United States have been named as defendants in those actions. Plaintiff continually harps upon the alleged denial to him of a forum in which he can petition for a redress of his grievances, yet by the device of naming almost the entire federal judiciary as defendants in other actions, he would deprive himself of a forum by his own theory that this automatically disqualifies any judge so named as a defendant. Furthermore, this court has no interest in the pending action and will view it with the impartiality given to any other action.

All Judges of the United States Tax Court have been named as defendants in actions brought by petitioner in various courts making general allegations of purported violations of his constitutional rights. Were the Judge before whom petitioner's case came up for trial to recuse herself because of the pendency ofPage 87these actions, there would be no Judge of the Tax Court who could hear petitioner's case. By statute, except where the tax is in jeopardy, respondent is prohibited from collecting any deficiency he has determined against a taxpayer during the pendency of a case in this Court. If petitioner's position in this case with respect to the necessity for a Judge to recuse himself were to be sustained, he could effectively postpone indefinitely the collection from him of any Federal income tax by refusing to voluntarily pay any tax, bringing respondent's determination of deficiency before this Court and shortly before his case was set for trial filing a suit, no matter how frivolous the allegations contained in the complaint, naming all the Judges of the Tax Court as defendants. The statute permitting a taxpayer to contest the validity of a proposed deficiency before the Tax Court without being required to make payment thereof was not intended to provide a device for a taxpayer to indefinitely postpone the collection by the Government of the amount of the deficiency rightfully owed.

Except that petitioner in computing his income tax for each year here in issue is entitled to four exemptions (one for himself and three for his dependent children), we sustain respondent's determination with respect to deficiencies in petitioner's income tax and additions to tax for the years 1969, 1970, and 1971.Decision will be entered under Rule 155.

Amount shown in notice of deficiency. Correct addition — $20,117.29. ↩
All references are to the Internal Revenue Code of 1954, unless otherwise noted. ↩
The cases ofGrosso v. United States,390 U.S. 62(1968), andMarchetti v. United States,390 U.S. 39(1968), relied on by petitioner, involving wagering taxes are distinguishable from the instant case. As the Court there pointed out, the hazards of self-incrimination were "real and appreciable" since "unlike the income tax return in question inUnited States v. Sullivan,274 U.S. 259" every portion of the requirements had the direct "consequence of incriminating petitioner." ↩
The full name of the plaintiff in this case is "Dr. Edward A. Cupp" making it obvious that the petitioner in this case is the same person as the plaintiff in that case. ↩
The facts in this case bear no resemblance to those in such cases asJohnson v. Avery,393 U.S. 483(1969), andUnitedStates v. Tarlowski,305 F. Supp. 112(E.D.N.Y. 1969), relied on by petitioner. ↩
The plaintiff is Edward A. Cupp, obviously the same person as the petitioner in this case. ↩