JOYE v. COMMISSIONER

T.C. Memo. 2002-14

UNITED STATES TAX COURT

SIMONE JOYE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10338-00L. Filed January 14, 2002.

Simone Joye, pro se.

Gerard Mackey, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge: The petition in this case was filed in

response to a “NOTICE OF DETERMINATION CONCERNING COLLECTION

ACTION(S) UNDER SECTION 6320 and/or 6330" (notice of determina-

tion).

The issues remaining for decision are:

(1) Did respondent correctly determine in the notice of

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determination that petitioner is liable for the additions to tax

under section 6651(a)(1)1 and (2) that respondent assessed for

each of petitioner’s taxable years 1987, 1988, and 1989? We hold

that respondent did.

(2) Did respondent abuse respondent’s discretion in deter-

mining in the notice of determination to proceed to collect the

additions to tax under section 6651(a)(1) and (2) that respondent

assessed for each of petitioner’s taxable years 1987, 1988, and

1989? We hold that respondent did not.

(3) Did respondent abuse respondent’s discretion in deter-

mining in the notice of determination not to abate interest under

section 6404(e) for each of petitioner’s taxable years 1987,

1988, and 1989? We hold that respondent did not.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

Petitioner resided in Bronx, New York, at the time she filed

the petition in this case.

Petitioner filed a Federal income tax (tax) return (return)

for her taxable year 1987 on May 18, 1990. In that return,

petitioner showed $1,492 as tax for 1987. As of April 15, 1988,

petitioner had a withholding credit of $961 with respect to that

tax. On June 18, 1990, respondent timely assessed the following

1

All section references are to the Internal Revenue Code in

effect at all relevant times. All Rule references are to the Tax

Court Rules of Practice and Procedure.

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for petitioner’s taxable year 1987: Tax of $1,492; additions to

tax under section 6651(a)(1) for failure to file timely and

section 6651(a)(2) for failure to pay timely of $119.48 and

$71.68, respectively; and interest of $176, all of which respon-

dent reflected in Form 4340, CERTIFICATE OF ASSESSMENTS, PAY-

MENTS, AND OTHER SPECIFIED MATTERS (Form 4340). On June 18,

1990, respondent sent petitioner a delinquency notice with

respect to her unpaid liability for 1987 of $531 in tax and

$191.16 in additions to tax, plus interest as provided by law on

those amounts.2 (For convenience, we shall refer to petitioner’s

liability for unpaid tax, unpaid additions to tax, and interest

as provided by law on such unpaid tax and such additions to tax

as petitioner’s unpaid liability.) As of the date of trial in

this case, petitioner had not paid any portion of petitioner’s

unpaid liability for 1987.

Petitioner filed a return for her taxable year 1988 on May

18, 1990. In that return, petitioner showed $1,676 as tax for

1988. As of April 15, 1989, petitioner had a withholding credit

of $186 with respect to that tax. On June 18, 1990, respondent

timely assessed the following for petitioner’s taxable year 1988:

Tax of $1,676; additions to tax under section 6651(a)(1) for

failure to file timely and section 6651(a)(2) for failure to pay

2

Respondent had previously sent petitioner delinquency

notices with respect to her taxable year 1987 on July 31, 1989,

Sept. 25, 1989, Feb. 5, 1990, and Mar. 19, 1990.

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timely of $335.25 and $111.75, respectively; and interest of

$261.45, all of which respondent reflected in Form 4340. On June

18 and July 23, 1990, respondent sent petitioner a notice of

balance due with respect to her unpaid liability for 1988 of

$1,490 in tax and $447 in additions to tax, plus interest as

provided by law on those amounts. As of the date of trial in

this case, petitioner had not paid any portion of petitioner’s

unpaid liability for 1988.

Petitioner filed a return for her taxable year 1989 on April

24, 1990. In that return, petitioner showed $1,661 as tax for

1989. As of April 15, 1990, petitioner had a withholding credit

of $1,491 with respect to that tax. On June 4, 1990, respondent

timely assessed the following for petitioner’s taxable year 1989:

Tax of $1,661; additions to tax under section 6651(a)(1) for

failure to file timely and section 6651(a)(2) for failure to pay

timely of $7.65 and $1.18, respectively; and interest of $2.70,

all of which respondent reflected in Form 4340. On June 4 and

July 9, 1990, respondent sent petitioner a notice of balance due

with respect to her unpaid liability for 1989 of $170 in tax and

$8.83 in additions to tax, plus interest as provided by law on

those amounts. As of the date of trial in this case, petitioner

had not paid any portion of petitioner’s unpaid liability for

1989.

On June 19, 1990, petitioner sent respondent the following

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letter (petitioner’s June 19, 1990 letter) with respect to her

unpaid liability for each of the years 1987, 1988, and 1989:

Re: 1040A Year 1987 $ 898.16

1040 Year 1988 $2,198.45

1040 Year 1989 $ 181.53

Total: $3,278.14

Dear Sir/Madam:

I have recently received notices outlining the above

taxes that I apparently owe.

From June of 1987 until December of 1989, I was regis-

tered as a full-time student (the periods where some

taxes were paid were either when I was only registered

part-time or on a summer break).

When I filled out my W-4 forms I filed for the exempt

status because that is what is highlighted on the form

for full-time students.

Imagine my surprise and dismay when I was notified by

your office that I would have to file taxes for the

above-reference years. I had the taxes filed and

received notices stating that I owe $3,278.14,

$1,087.14 being interest and penalties (copies en-

closed).

As a current student with a part-time job, paying for

my own education and living on my own, I do not readily

have that type of money available nor did I ever real-

ize that I would be so severly penalized for something

in which I believed to be correct.

Please advise me of my current options in terms of

appealing this, paying for this debt through Form 911

(Application for Assistance Order to Relieve Hardship),

or any other means available.

Also, please send to me the rules and regulations

governing the status of full-time students and with-

holding provisions. [Reproduced literally.]

On June 29, 1990, respondent sent petitioner a letter in

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response to petitioner’s June 19, 1990 letter. In that letter,

respondent stated: “We are looking into the matter you brought

to our attention; however, additional research is needed before

we can give you a final answer. No further action is required of

you at this time. We should have a response for you within 30

days from the date of this letter.”

On August 9, 1990, respondent sent petitioner a second

letter in response to petitioner’s June 19, 1990 letter. In that

letter, respondent stated:

Thank you for your reply dated June 19, 1990, to our

inquiry about your Form 1040 for the tax period(s)

shown above [petitioner’s taxable years 1987, 1988, and

1989]. We are looking into the matter and will answer

you more fully within 45 days from the date of this

letter.

On November 12, 1990, respondent sent petitioner a notice of

intent to levy with respect to petitioner’s unpaid liability for

each of the years 1987, 1988, and 1989.

On a date not disclosed by the record after petitioner sent

petitioner’s June 19, 1990 letter to respondent and before July

29, 1991, petitioner again informed respondent that she was

unable to pay in full her liability for each of the years 1987,

1988, 1989, as well as 1990. On July 29, 1991, respondent sent

petitioner a letter with respect to petitioner’s unpaid liability

for each of the years 1987, 1988, 1989, and 1990. In that

letter, respondent stated:

You told us recently that you cannot pay your

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taxes in full. Therefore, you must complete the en-

closed Form 433F, Collection Information Statement.

* * * * * * *

If you do not return the above documents within 7

days from the date of this letter, we will begin en-

forcement actions. We expect you to pay as much as

possible at the time you send in your statements. * * *

Respondent has no record of having received Form 433-F, Collec-

tion Information Statement (Form 433-F), from petitioner.

On December 15, 1995, respondent filed a notice of Federal

tax lien against petitioner with respect to her unpaid liability

for each of the years 1987, 1988, and 1989. On December 26,

1995, respondent classified petitioner’s unpaid liability for

each of the years 1987, 1988, and 1989 as “currently not collect-

ible” because respondent was unable to locate petitioner.

On May 18, 1998, respondent sent petitioner a separate

notice of balance due with respect to petitioner’s unpaid liabil-

ity for each of the years 1987, 1988, and 1989. On June 22,

1998, respondent sent petitioner a separate notice of intent to

levy with respect to each of those unpaid liabilities.

On July 8, 1998, petitioner sent respondent a letter in

response to the three notices of balance due that respondent sent

to petitioner on May 18, 1998. In that letter, petitioner

stated:

On June 19, 1990 I sent a letter to the IRS regarding

taxes for 1987, 1988, and 1989 (copy enclosed). It was

clearly stated on the W-4 form if you were a full-time

student you were instructed to write in EXEMPT from

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taxes, in which I did. * * *

I have argued this point for several years, and believe

at that time the W-4 form was misleading. Apparently,

others have agreed because there is now a “Note” in the

instructions for the W-4 which now states you cannot

claim exemption if your income is over $700 or another

person can claim you as a dependent on their tax return

(which is very different from what was initially told

and outlined to me in 1990) and number 7 on the W-4 no

longer has a line for full-time students.

I have always believed and still do that, unequivo-

cally, the amount I am being told I owe is grossly

unfair. The amount now owed, with interest and penal-

ties included, is over 2x the amount I initially owed.

I called the IRS office several times after the corre-

spondence in 1990, to try and find out how to file an

appeal and was promised the correct form, although I

have never received them.

Upon receipt of the recent notices dated, May 18, 1998

in which I have been told that a lien may be taken out

against me, (and because this issue is haunting me), I

informed a IRS representative, through the 1-800 num-

ber, I would be willing to pay the initial amount of

taxes underpaid which totals $2,402 (see attached

schedule) by sending $100 per month beginning August

10, 1998. I was told that there would be an hold on my

account for six weeks and for me to put my situation in

writing. I would like to ask the penalties be elimi-

nated due to a reasonable cause, and the penalties be

abated. I am a single mother and have had to postpone

my graduate studies due to a financial hardship. There

is no way I can afford to pay almost $8,000 and I do

not have any assets in which a lien can be placed upon.

In addition, I have a similar type of situation with

the State of New York which totals approximately

$4,000. [Reproduced literally.]

On May 18, 1999, respondent sent petitioner a notice inform-

ing her of respondent’s intent to levy and petitioner’s right to

an Appeals Office hearing with respect to petitioner’s unpaid

liability for each of the years 1987, 1988, 1989, 1990, and 1997.

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On June 11, 1999, respondent received petitioner’s request

for an Appeals Office hearing with respect to her unpaid liabil-

ity for each of the years 1987, 1988, 1989, and 1990. In that

request, petitioner stated:

I do not agree with the Notice of Levy/Seizure because

of the circumstances in which were done to determine

the tax liability. For several years, I have written

and telephoned the IRS to try to set up a meeting to

try and remedy this situation, to no avail.

The taxes incurred are when I was a full-time student

and I filled out the W-4 form according to the instruc-

tions listed under number 7 which states “I claim

exemption from withholding for...and I certify that I

meet BOTH of the following conditions for exemp-

tion:...” Since that time the form has been changed,

but when I filled them out for the years of collection

one of the conditions were if you were a full-time

student.

I now know, through investigation, that if a person

made over a certain income they could not be exempt.

However, at the time this was not made clear by my

employer or on the W-4 form. It was almost like a set-

up for students and I truly do not feel I should be

held liable for the amount of $8,718.39 that is being

stated I owe.

Because this has been a detriment to me for a very long

time, I would be willing to pay the assessed balance

charges, just so that I may get this behind me. How-

ever, I do not seem it just nor proper to charge me

with Statutory Additions or to penalize me by seizing

any property of mines which would not equal the amount

owed. I am a single mother and any penalization would

be a severe hardship for me.

I welcome an opportunity to finally review this with an

IRS representative in person at the earliest possible

time to set-up a payment plan. [Reproduced literally.]

On October 5, 1999, Appeals Officer Martin D. Fried sent

petitioner a letter indicating that he had received petitioner’s

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case for consideration and that he would contact petitioner to

schedule an Appeals Office hearing. On February 28, 2000,

Appeals Officer Federico Lawrence (Mr. Lawrence) sent petitioner

a letter indicating that he had received petitioner’s case for

consideration and that he would contact petitioner to schedule an

Appeals Office hearing.

On June 20, 2000, Mr. Lawrence sent a letter to petitioner

(Mr. Lawrence’s June 20, 2000 letter), in which he stated:

Attached, [sic] for your information is a copy of Form

W-4 for the taxable year 1988. Line 7 of the document

states as follow[s]:

“Are you a full time student? (Note: Full-time stu-

dents are not automatically exempt.)”

I was not able to locate a copy of the Form W-4 for

1987 but I assumed it would be identical to the 1988 W-

4 Form. Also, 1988 was the year you incurred largest

liability. Our records show the outstanding balance

for taxable year 1988 to be $5,019.81, as of May 1999.

This amount includes accrued interest and penalties.

Line 6 of Form W-4, Employee’s Withholding Allowance Certif-

icate (Form W-4), for 1987, which, according to Mr. Lawrence’s

June 20, 2000 letter, he was unable to locate, provided:

6 I claim exemption from withholding because (see Step 2 above

and check boxes below that apply):

a G Last year I did not owe any Federal income tax and had a

right to a full refund of ALL income tax withheld, AND

b G This year I do not expect to owe any Federal income tax

and expect to have a right to a full refund of ALL income

tax withheld. If both a and b apply, enter the year Year

effective and “EXEMPT” here . . . < 19

c If you entered “EXEMPT” on line 6b, are you a full-time

student? . . . . . . . . . . . . . . . . . . . . . . . GYes GNo

The instructions for completing line 6 of Form W-4 for 1987

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that were contained in that form provided:

Step 2--Are you Exempt From Withholding?--You are

exempt from withholding ONLY if:

1. Last year you did not have any Federal income tax

liability; AND

2. This year you expect to have no Federal income tax

liability.

Important Change in the Law.--If you can be claim-

ed as a dependent on another person’s tax return (for

example, on your parent’s return), you may not be

exempt. You cannot claim exempt status if you have any

nonwage income, such as interest on savings, and expect

your wages plus this nonwage income to add up to more

than $500.

If you are exempt, go to line 6 of Form W-4 and

complete the appropriate boxes. Your exempt status

will remain in effect until February 15 of the next

year. If you still qualify for exempt status next

year, complete and file a new form by that date.

On June 28, 2000, Mr. Lawrence received a letter from

petitioner in response to Mr. Lawrence’s June 20, 2000 letter.3

In that letter, petitioner stated:

First let me say thank you for your assistance in my

case. I have received your letter of June 20, 2000.

Fortunately, I have found a copy of the 1987 W-4 Form

and it is not the same as 1988 as you had assumed. As

you will see, in Line 6, letter c it states, “If you

entered “EXEMPT” on line 6b, are you a full-time stu-

dent?”

Additionally, I held the same job in 1987 and for at

3

The letter that respondent received from petitioner on June

28, 2000, showed a date of June 16, 2000. However, we are

convinced from that letter (1) that petitioner wrote it on a date

after June 20 and before June 28, 2000, and (2) that petitioner

mistakenly dated that letter June 16, 2000.

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least six months in 1988 and never submitted a new W-4

form since I was on the same job. When I got another

job in July or August 1988 (and subsequent years), I

followed the same protocol. Although on the W-4's for

1988, 1989 and 1990 it states full-time students are

not automatically exempt, it does not tell you the

procedure by which to go by. I still stand by my

belief that I had a right to claim exempt because I was

a full-time student.

Once again, I feel that the amount for an alleged

liability incurred when I was 21-23 years old that is

10-13 years old respectively is still grossly unfair.

In particular since the interest and penalties total

more than the debt claimed I was to pay and I simply

cannot afford it. In addition, the law of the IRS is

that after 6 years (assuming a person has not failed to

report more than 25% of their income) the tax records

of an individual are closed from what I understand.

[Reproduced literally.]

On July 12, 2000, petitioner had an Appeals Office hearing

before Mr. Lawrence. Prior to June 11, 1999, the date of the

receipt by respondent of petitioner’s request for an Appeals

Office hearing, petitioner had had no contact with Mr. Lawrence

with respect to petitioner’s unpaid liability for each of the

years 1987, 1988, 1989, and 1990.

On September 15, 2000, the Appeals Office issued to peti-

tioner a notice of determination with respect to petitioner’s

taxable years 1987, 1988, 1989, 1990, and 1997. That notice of

determination stated in pertinent part as follows:

Issue[s] raised by the taxpayer

* * * * * * *

The taxpayer’s position is that she should not be held

liable for the interest and penalties that have accrued

on the unpaid taxes, for the tax years involved [1987,

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1988, 1989, 1990, and 1997], since the Form W-4 did not

properly explain that if a full time student made over

a certain amount of income he/she could not be exempt

from withholdings taxes from wages. She wants the

interest and the penalties to be abated based on un-

clear written instructions From the IRS.

* * * * * * *

IRC § 6601(a) provides, that if any amount of the tax

imposed by this title is not paid on or before the last

date prescribed for payment, interest on the underpay-

ment rate established under Section 6621 shall be paid

for the period from such last date to the date paid.

IRC § 6404(e)(1) provides for abatement of interest

attributable to unreasonable error and delays by Inter-

nal Revenue Service in performing a ministerial or

management act. However, interest cannot be abated for

any period if a significant aspect o the error or delay

can be attributable to the taxpayer within the meaning

of section 267(b) or 707(b) of the code.

In the present case, IRC § 6404(e)(1) does not apply,

because the evidence in this case shows that error or

delay was attributable to taxpayer’s Failure to file

timely tax returns and to pay the taxes due on those

returns. Based on the evidence in the case file, it

appears that the taxpayer willfully disregards IRS

Rules and Regulations. Accordingly, the interest is

due and payable.

IRC § 6651(a)(1) imposes a penalty for the failure to

file tax return, by the date prescribed, unless, it is

shown that the failure is due to reasonable cause and

not due to willful neglect.

Likewise, IRC § 6651(a)(2) imposes a failure to pay

penalty if the tax shown on the return, is not paid by

the due date of that return, unless the failure to pay

is due to reasonable cause and not due to willful

neglect.

The burden of proof is on the taxpayer to establish

reasonable cause for the abatement of the penalties.

The evidence in this case shows, that even though if

the taxpayer was misled to believe that she was exempt

from withholdings, as a result of the information she

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had received from the 1987 Form W-4 that information

has nothing to do with late filing of the tax returns

and the failure to pay the taxes due on those returns.

Therefore, the taxpayer’s argument has no merit with

respect to the Form W-4 instructions because the real

issues in this case are the penalty for the failure to

file timely returns and the penalty for the failure to

pay the taxes due on those returns. Accordingly, the

penalties are due and payable.

Furthermore, the taxpayer was not asserted a penalty

for insufficient withholdings of tax from wages.

Therefore, the Form W-4 argument appears to have been

raised to cloud the main issues in this case, which are

the Failure to timely file returns and the Failure to

pay the taxes due on those returns.

* * * * * * *

MY EVALUATION

I recommend that the Service Center be allowed to issue

a Notice of Levy. [Reproduced literally.]

On October 4, 2000, petitioner filed a petition in response

to respondent’s determinations in the notice of determination

with respect to only petitioner’s taxable years 1987, 1988, and

1989. In the petition, petitioner alleged:

IRC Section 6404(e)(1) should be applicable due to the

IRS delays. Correspondence was sent to the IRS 3/38/90

and 6/19/90 regarding the tax periods above. Peti-

tioner was informed via letter dated 6/29/90 that “No

further action is required of you at this time” and

that “We should have a response for you within 30 days

from the date of this letter.” The next response was a

letter dated 8/9/90 stating “We are looking into the

matter and will answer you more fully within 45 days

from the date of this letter.” Petitioner then re-

ceived a letter dated 9/27/90 & 7/29/91 requesting that

I fill out a Collection Information Statement which was

done and submitted to the IRS on 7/31/91. No further

correspondence was received from the IRS regarding

this.

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* * * * * * *

Petitioner strongly believes that IRC Section

6404(e)(1) does apply in this case, because there is

evidence in this case which shows that delays were not

attributable to Petitioner “Failure to file timely tax

returns” as Petitioner has been corresponding with the

IRS regarding these tax years since 1988. Addition-

ally, Petitioner is accused of raising at the Appeals

Conference a “W-4 argument [which] appears to have been

raised to cloud the main issues in this case...” Petitioner has corres

W-4 form since 1988. [Reproduced literally.]

OPINION

Petitioner does not dispute respondent’s determinations in

the notice of determination that respondent may proceed to

collect tax of $531 for 1987, $1,490 for 1988, and $170 for 1989.

Petitioner disputes only respondent’s determinations that respon-

dent may proceed to collect additions to tax under section

6651(a)(1) and (2) and interest as provided by law for each of

those years.4

4

With respect to the additions to tax under sec. 6651(a)(1)

and (2) that respondent assessed for each of petitioner’s taxable

years 1987, 1988, and 1989, petitioner indicated at trial that

she disputes that she is liable for those additions to tax. On

brief, petitioner indicates that she seeks “abatement” of those

additions to tax. We construe petitioner’s position as a request

to review (1) whether she is liable for the additions to tax

under sec. 6651(a)(1) and (2) that respondent assessed for each

of her taxable years 1987, 1988, and 1989 and (2) whether if the

Court were to find that she is so liable, respondent may proceed

to collect such additions to tax.

With respect to the interest as provided by law for each of

petitioner’s taxable years 1987, 1988, and 1989, petitioner

indicated at trial and on brief that she seeks abatement of such

interest during the period 1990 to the present. We construe

petitioner’s position as a request to review respondent’s failure

(continued...)

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Where the validity of the underlying tax liability is

properly at issue, the Court will review the matter on a de novo

basis. Where the validity of the underlying tax liability is not

properly at issue, the Court will review the administrative

determination of the Appeals Office of the Internal Revenue

Service for abuse of discretion. Sego v. Commissioner, 114 T.C.

604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182

(2000).

Respondent concedes that petitioner did not receive a notice

of deficiency for any of her taxable years 1987, 1988, or 1989

and did not otherwise have an opportunity to dispute her tax

liability for any of those years. Petitioner properly raised as

an issue at her Appeals Office hearing whether she is liable for

the additions to tax under section 6651(a)(1) and (2) for each of

the years 1987, 1988, and 1989. See sec. 6330(c)(2)(B). We

shall review on a de novo basis respondent’s determinations in

the notice of determination that petitioner is liable for the

additions to tax under section 6651(a)(1) and (2) for each of

those years. If we find that petitioner is liable for those

additions to tax, we shall review for abuse of discretion respon-

dent’s determinations in the notice of determination to proceed

to collect those additions to tax. We shall also review for

4

(...continued)

to abate interest under sec. 6404(e).

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abuse of discretion respondent’s determinations in the notice of

determination not to abate interest under section 6404(e) for any

of petitioner’s taxable years 1987, 1988, and 1989.

De Novo Review

It is respondent’s position that respondent has the burden

of production under section 7491(c) with respect to petitioner’s

liability for each of the years at issue for the additions to tax

under section 6651(a)(1) and (2). Section 7491(c) provides:

SEC. 7491. BURDEN OF PROOF.

(c) Penalties.--Notwithstanding any other provi-

sion of this title, the Secretary shall have the burden

of production in any court proceeding with respect to

the liability of any individual for any penalty, addi-

tion to tax, or additional amount imposed by this

title.

Assuming, without deciding, that respondent has the burden of

production with respect to petitioner’s liability for each of the

years at issue for the additions to tax under section 6651(a)(1)

and (2), on the record before us, we find that respondent has met

respondent’s burden by coming forward with sufficient evidence

indicating that it is appropriate to impose on petitioner such

additions to tax for such years.5 See Higbee v. Commissioner,

116 T.C. 438, 446 (2001).

Section 6651(a)(1) imposes an addition to tax for failure to

5

The parties stipulated that petitioner did not file timely

her return for each of the years at issue and that, at least as

of the date of trial in this case, petitioner had not paid timely

any portion of her unpaid liability for each of those years.

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file timely a tax return. Section 6651(a)(2) imposes an addition

to tax for failure to pay timely the amount shown as tax in any

return. The additions to tax under section 6651(a)(1) and (2) do

not apply if the failure to file timely and to pay timely is due

to reasonable cause and not to willful neglect. Sec. 6651(a)(1)

and (2). Petitioner bears the burden of proving that any such

failures are due to reasonable cause and not to such willful

neglect. See Higbee v. Commissioner, supra at 447.

Petitioner does not dispute that she did not file timely her

return for each of her taxable years 1987, 1988, and 1989 and

that she did not pay timely the tax shown in each such return.

As we understand petitioner’s position, she contends that her

failure to file timely her return for each of her taxable years

1987, 1988, and 1989 and to pay timely the tax shown in each such

return was due to her erroneous belief based on Form W-4 for 1987

that, because she was a full-time student, she was exempt from

withholding of tax from her wages (withholding) during each of

those years. Petitioner points to no authority that shows that

she was not required to file a return for each of her taxable

years 1987, 1988, or 1989 and that she was not required to pay

the tax shown in each such return. Nothing in Form W-4 for 1987,

the instructions for that form, or the law in effect for that

year indicates that a full-time student was exempt from withhold-

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ing for that year.6 On the record before us, we reject peti-

tioner’s position.

Assuming arguendo that Form W-4 for 1987 had indicated that

full-time students were exempt from withholding for that year and

that petitioner was exempt from withholding for each of her

taxable years 1987, 1988, and 1989, on the record before us, we

find that petitioner was required to file timely a return for

each of those years and to pay timely the tax shown in each such

return. See sec. 6012(a)(1)(A).

On the record before us, we find that petitioner has failed

to show that her failure to file timely her return for each of

her taxable years 1987, 1988, and 1989 and her failure to pay

timely the tax shown in each such return was due to reasonable

cause and not to willful neglect. On that record, we find that

petitioner has failed to show that she is not liable for the

additions to tax under section 6651(a)(1) and (2) that respondent

assessed for each of those years.

6

Although petitioner claims that, pursuant to Form W-4 for

1987, she was exempt from withholding for each of her taxable

years 1987, 1988, and 1989 because she was a full-time student

during each such year, tax was withheld from her wages during

each of those years, and petitioner was aware of such withhold-

ing. On the instant record, we find incredible petitioner’s

claimed belief that she was exempt from withholding. Even if

petitioner had erroneously believed that she was exempt from

withholding for each of the years 1987, 1988, and 1989, her

mistake as to, or ignorance of, the law does not constitute

reasonable cause under sec. 6651(a)(1) and (2). Joyce v. Commis-

sioner, 25 T.C. 13, 15 (1955).

- 20 -

Review for Abuse of Discretion

Petitioner must establish that respondent abused respon-

dent’s discretion in determining to proceed to collect the

additions to tax at issue under section 6651(a)(1) and (2) and

interest as provided by law for each of petitioner’s taxable

years 1987, 1988, and 1989. See Rule 142(a).

Additions to Tax Under Section 6651(a)(1) and (2)

Although not altogether clear, petitioner appears to contend

that respondent abused respondent’s discretion in determining to

proceed to collect the additions to tax under section 6651(a)(1)

and (2) that respondent assessed for each of petitioner’s taxable

years 1987, 1988, and 1989 because: “I [petitioner] have been

the one to iniciate [sic] the cause of action in seeking to

rectify my situation with the IRS”. Petitioner offered the

following explanation of her position:

So, the issue is not so much that I didn’t want to

file taxes or I didn’t want to pay the taxes, but all

these years that have gone on, I don’t think that I

should be penalized when I have tried to, as evidenced

in all the exhibits, reach out to the IRS to have

someone sit with me and say, no, this [is] the law,

this is not the law, et cetera.

Respondent sent petitioner delinquency notices with respect

to her taxable year 1987 in July and September 1989 and in

February and March 1990.7 Thereafter, on April 24, 1990, peti

7

Respondent also sent petitioner (1) a delinquency notice

with respect to petitioner’s unpaid liability for 1987 in June

(continued...)

- 21 -

tioner filed her return for 1989, and on May 18, 1990, she filed

her return for each of the years 1987 and 1988. In June 1990,

respondent timely assessed petitioner for her unpaid liability

for each of the years 1987, 1988, and 1989. In petitioner’s June

19, 1990 letter and again sometime thereafter, petitioner in-

formed respondent that she was unable to pay in full her unpaid

liability for each of those years, which prompted respondent to

send petitioner Form 433-F on July 29, 1991.8 Although prior to

trial petitioner claimed that she completed Form 433-F that

respondent sent to her, respondent has no record of having

received that form. In December 1995, respondent filed a notice

of Federal tax lien against petitioner with respect to her unpaid

liability for each of the years 1987, 1988, and 1989 and classi-

fied each such liability as “currently not collectible” because

respondent was unable to locate petitioner. In May and June

1998, respectively, respondent sent petitioner notices of balance

due and notices of intent to levy with respect to her unpaid

liability for each of the years 1987, 1988, and 1989, to which

7

(...continued)

1990 and (2) separate notices of balance due with respect to her

unpaid liability for 1988 and 1989 in June 1990 as well as in

July 1990.

8

Although petitioner claimed in certain letters that she

sent to respondent that she was unable to pay in full her unpaid

liability for each of the years 1987, 1988, and 1989, petitioner

did not contend in her petition, at trial, or on brief that she

was not able to pay that liability for each such year.

- 22 -

petitioner responded by letter on July 8, 1998.

On the record before us, we find that petitioner has failed

to show that respondent abused respondent’s discretion in deter-

mining in the notice of determination to proceed to collect the

additions to tax under section 6651(a)(1) and (2) that respondent

assessed with respect to each of petitioner’s taxable years 1987,

1988, and 1989.9

Interest

We construe petitioner’s position with respect to the

interest at issue as a request to review respondent’s failure to

abate interest under section 6404(e). See supra note 4. We have

jurisdiction to review respondent’s determination in the notice

of determination not to abate interest. Sec. 6404(i); Katz v.

Commissioner, 115 T.C. 329, 340-341 (2000).

Petitioner contends that respondent abused respondent’s

discretion in failing to abate interest on petitioner’s unpaid

liability for each of the years 1987, 1988, and 1989 because:

respondent * * * has performed a ministerial act re-

9

With respect to petitioner’s contention that she would be

penalized if the Court were to allow respondent to proceed to

collect the additions to tax at issue under sec. 6651(a)(1) and

(2), we note that additions to tax such as those under sec.

6651(a)(1) and (2) are remedial, and not punitive. See Helvering

v. Mitchell, 303 U.S. 391, 401 (1938); Ianniello v. Commissioner,

98 T.C. 165, 187 (1992). Such additions to tax are provided

primarily as a safeguard for the protection of the revenue and to

reimburse the Government for the significant expense of investi-

gation and the loss resulting from a taxpayer’s actions or

omissions. See Helvering v. Mitchell, supra.

- 23 -

garding my case under the law.

* * * * * * *

* * * Respondent has delayed my tax situation and did

not allow me due process or accurate information until

I sought relief from the Court. This was an abuse of

their discretion. * * *

Section 6404(e) provides in pertinent part:

SEC. 6404. ABATEMENTS.

(e) Assessments of Interest Attributable to Errors

and Delays by Internal Revenue Service.--

(1) In general.--In the case of any assess-

ment of interest on--

* * * * * * *

(B) any payment of any tax described in

section 6212(a) to the extent that any error

or delay in such payment is attributable to

such officer or employee [of the Internal

Revenue Service] being erroneous or dilatory

in performing a ministerial act,

the Secretary may abate the assessment of all or

any part of such interest for any period. For

purposes of the preceding sentence, an error or

delay shall be taken into account only if no sig-

nificant aspect of such error or delay can be

attributed to the taxpayer involved, and after the

Internal Revenue Service has contacted the tax-

payer in writing with respect to such * * * pay-

ment.[1]

1

Sec. 6404(e) was amended by Taxpayer Bill of Rights 2, Pub. L. 104-168,

sec. 301, 110 Stat. 1452, 1457 (1996), to permit the Secretary to abate

interest with respect to an “unreasonable” error or delay resulting from

“managerial” and ministerial acts. This amendment applies to interest

accruing with respect to deficiencies or payments for taxable years beginning

after July 30, 1996; therefore, it does not apply to the instant case. Katz

v. Commissioner, 115 T.C. 329, 341 n.18 (2000).

Petitioner does not point to any ministerial act performed

by respondent or otherwise advance any arguments or contentions

- 24 -

in support of her position that the delay in the payment of her

unpaid liability for each of the years 1987, 1988, and 1989 was

attributable to respondent’s being erroneous or dilatory in

performing a ministerial act. Respondent contends that a signif-

icant aspect of petitioner’s delay in the payment of her unpaid

liability for each of those years is attributable to petitioner.

On the record before us, we agree with respondent. At all times,

petitioner had the ability to stop the accrual of interest on her

unpaid liability for each of the years 1987, 1988, and 1989 by

paying that liability. On the record before us, we find that

petitioner has failed to show that the delay in the payment of

her unpaid liability for each of the years 1987, 1988, and 1989

was attributable to respondent’s being erroneous or dilatory in

performing a ministerial act. On that record, we further find

that petitioner has failed to show that respondent abused respon-

dent’s discretion in determining not to abate interest during the

period 1990 to present with respect to each of those years.

We have considered all of petitioner’s arguments and conten-

tions that are not discussed herein, and we find them to be

without merit and/or irrelevant.

To reflect the foregoing,

Decision will be entered for

respondent.