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Ficalora v. Commissioner of Internal Revenue

decided: December 13, 1984.

ALFRED FICALORA, APPELLANT,
v.
COMMISSIONER OF INTERNAL REVENUE, APPELLEE



Appeal from a decision of the United States Tax Court (Judge Dawson, adopting the order of Special Trial Judge Gussis) determining a deficiency in the amount of $10,013.09 and additions to tax of $606.55 and $526.05 under Sections 6651(a)(1) and 6653(a)(1) of the Internal Revenue Code of 1954 (26 U.S.C.), respectively.

Oakes and Winter, Circuit Judges, and Clarie, District Judge.*fn*

Author: Clarie

CLARIE, District Judge.

Alfred Ficalora appeals from a decision of the United States Tax Court, Dawson, J., determining, for the calendar year 1980, a deficiency in the amount of $10,013.09 and additions to tax of $606.55 and $526.05 under Sections 6651(a)(1) and 6653(a)(1) of the Internal Revenue Code of 1954 (26 U.S.C.), respectively. Having found the appellant's many claims to be without any merit, we affirm the decision of the United States Tax Court.

BACKGROUND

Alfred Ficalora filed a document with respect to his tax liability for 1980 on which he reported taxable income in the amount of $6,465.00. During the taxable year 1980, the appellant was employed by the New York Telephone Company. The document filed by Ficalora became the subject of an Internal Revenue Service audit. As a result of that audit, the Commissioner adjusted the taxpayer's gross income to include $2,614.00 in interest income and $343.00 in dividend income, and to reflect the disallowance of $27,219.00 in business expense deductions and the allowance of a $1,000.00 credit for a personal exemption. Based on these adjustments, the Commissioner determined that the taxpayer owed a deficiency of $10,013.09. The Commissioner further found that as the document filed by the taxpayer did not constitute a tax return within the meaning of the Internal Revenue Code, the taxpayer is liable for an addition to tax under Code Section 6651(a)(1) in the amount of $606.55 for failure to file a return. The Commissioner also determined that the underpayment in tax was due either to the taxpayer's negligence or his intentional disregard of rules and regulations, and, therefore, assessed an addition to tax under 26 U.S.C. ยง 6653(a) in the amount of $526.05.

A notice of deficiency reflecting these determinations was sent to the taxpayer on June 2, 1983. Ficalora thereupon filed a petition with the Tax Court seeking a redetermination of the deficiencies and additions to tax assessed against him by the Commissioner. In this petition, and other documents filed with the Tax Court, the taxpayer asserted various legal arguments, including, inter alia, the contentions that wages do not constitute taxable income within the meaning of the Internal Revenue Code or the United States Constitution, that the withholding statutes are unconstitutional, and that the additions to tax, provided in Code Sections 6651(a)(1) and 6653(a)(1), are unconstitutional.

The Commissioner moved to dismiss the appellant's petition, pursuant to Rules 34(b) and 40 of the Rules of Practice and Procedure of the United States Tax Court, on the ground that the taxpayer had alleged no justiciable error with respect to the determination and had asserted no justiciable facts in support of the petition. The Tax Court granted that motion and sustained in full the deficiency and additions to tax asserted against the taxpayer.

Through this appeal, the appellant has attempted to launch a broadly based attack on the authority of both the Courts and the Congress to impose and collect a tax on his income for the taxable year 1980.

Discussion

I. Constitutional Authority to Impose An Income Tax on Individuals

We first address ourselves to the appellant's contention that neither the United States Congress nor the United States Tax Court possess the constitutional authority to impose on him an income tax for the taxable year 1980. Appellant argues that an income tax is a "direct" tax and that Congress does not possess the constitutional authority to impose a "direct" tax on him, since such a tax has not been apportioned among the several States of the Union. In support of his argument, appellant cites Article I, Section 9, clause 4 of the United States Constitution which provides that:

"No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

He also relies on the case of Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 (initial decision), 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108 (decision on rehearing) (1895), wherein the United States Supreme Court held that a tax upon income ...


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